Citation Nr: 1618728 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 14-21 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Subsequent to the issuance of the April 2014 Statement of the Case, the Veteran submitted additional evidence in August 2015, for which a waiver of initial RO consideration was provided. See February 2016 Informal Hearing Presentation. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. For the initial rating period prior to April 17, 2014, audiometric testing revealed, at worst, average puretone threshold of 53 decibels and 94 percent speech recognition in the right ear, and average puretone threshold of 55 decibels and 84 percent speech recognition in the left ear. 2. For the initial rating period beginning April 17, 2014, audiometric testing has revealed, at worst, average puretone threshold of 53 decibels and 80 percent speech recognition in the right ear and average puretone threshold of 44 decibels and 72 percent speech recognition in the left ear. CONCLUSIONS OF LAW 1. For the initial rating period prior to April 17, 2014, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100 (2015). 2. For the initial rating period beginning April 17, 2014, the criteria for a 10 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran. In an April 2013 letter, VA informed the Veteran of the evidence necessary to substantiate his initial claim for service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman, 19 Vet. App. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Further, the Board notes that service treatment records, post-service treatment records, statements from the Veteran's representative, the Veteran's lay statements, and his DD Form 214 are of record. The Veteran was also afforded VA audiological examination in July 2013 (in Virtual VA) to address his hearing loss disability. 38 C.F.R. § 3.159(c)(4) (2014). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; and fully addresses the relevant rating criteria. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has also submitted a VA audiological examination dated in April 2014 from the VA medical center. There is no additional evidence indicating that there has been a material change in the severity of his service-connected hearing loss since he was last examined. See 38 C.F.R. § 3.327(a) (2015). Significantly, the Veteran and his representative have not 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 Veteran is required to fulfill VA's duty to assist 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). Hearing Loss Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Board has considered whether staged ratings are for consideration. As the Board will discuss in more detail below, the evidence of record establishes that the Veteran's service-connected hearing loss increased in severity during the course of this appeal to warrant a staged rating. The Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four). 38 C.F.R. § 4.85 (2015). Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. Id. When evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone threshold 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). That numeral is then elevated to the next higher Roman numeral. Each ear is evaluated separately. Id. Bilateral Hearing Loss Rating Analysis The Veteran's service-connected bilateral hearing loss is rated as noncompensable. He asserts that a higher rating is warranted. The Board has reviewed all the evidence of record, including the Veteran's lay statements and VA audiological examinations. For the reasons discussed below, the Board finds that, prior to April 17, 2014, the Veteran's bilateral hearing loss did not more nearly approximate a compensable rating. However, beginning April 17, 2014, the evidence shows that the Veteran's hearing loss meets the criteria for a 10 percent disability rating. The evidence includes a July 2013 VA audiological evaluation where pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 40 55 80 LEFT 35 45 55 85 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 84 percent in the left ear. The July 2013 VA audiology consult report findings, applied to Table VI, yield a numeric designation of I in the right ear on the basis of 53 decibel puretone threshold average, and 94 percent speech discrimination and a numeric designation of II in the left ear on the basis of 55 decibel puretone threshold average, and 84 percent speech discrimination). The numeric designation for the right ear I along with the numeric designation for the left ear II, entered into Table VII, produce a 0 percent evaluation for hearing impairment. The Veteran submitted a VA audiological evaluation dated April 17, 2014. Results showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 65 80 LEFT 25 35 55 60 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 72 in the left ear. The April 2014 VA audiology examination report findings, applied to Table VI, yield a numeric designation of IV in the right ear on the basis of 53 decibel puretone threshold average, and 80 percent speech discrimination and a numeric designation of IV in the left ear on the basis of 44 decibel puretone threshold average, and 72 percent speech discrimination). The numeric designation for the right ear IV along with the numeric designation for the left ear IV, entered into Table VII, produce a 10 percent evaluation for hearing impairment. The Board notes that puretone thresholds reported on the audiological evaluations discussed above were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) and were not recorded at 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Thus, the provision of 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment do not apply in this case. The Board has considered the lay statements submitted by the Veteran and his representative and is aware of the complaints about the Veteran's inability to hear well. The Veteran is competent to describe his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Here, mechanical application of the rating schedule to the audiometric findings shows that the Veteran's hearing loss disability first met the audiometric findings of a compensable (10 percent rating) beginning April 17, 2014, but no sooner. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that, relevant to VA audiological examinations, 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. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the July 2013 VA examiner addressed functional effects of hearing loss by noting that the Veteran experienced difficulty hearing and indicated that everything was quiet. Therefore, the functional effects of his hearing loss disability are adequately addressed in the record and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). For these reasons, the Board finds that, for the initial rating period prior to April 17, 2014, a compensable rating for bilateral hearing loss is not warranted. The Board further finds that, for the initial rating period beginning April 17, 2014, a 10 percent rating, but no higher, for bilateral hearing loss is warranted. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's hearing loss disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provides for disability ratings based on audiometric evaluations, to include speech discrimination testing. In this Veteran's case, the Board recognizes and has considered the Veteran's complaints and difficulty understanding sounds. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the record includes the VA examination reports which addressed functional impairment in addition to the Veteran's lay evidence of functional limitations related to his difficulties with understanding speech when background noise is present. The functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above, including the effect of the Veteran's hearing loss on his daily life. In the absence of exceptional factors associated with the hearing loss disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The Court has held that entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the July 2013 VA examiner indicated that the Veteran's hearing loss impacted his ability to work; however, there is no evidence suggesting that the Veteran is unable to obtain or maintain employment solely due to his service-connected hearing loss and tinnitus disabilities. The Veteran has also not raised the issue of a TDIU. As such, the issue of entitlement to a TDIU has not been raised by the Veteran or the record at this time. ORDER For the initial rating period prior to April 17, 2014, a compensable rating for bilateral hearing loss is denied. For the initial rating period beginning April 17, 2014, a 10 percent rating, but no higher, for bilateral hearing loss is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs