Citation Nr: 1618973	
Decision Date: 05/11/16    Archive Date: 05/19/16

DOCKET NO.  15-07 424	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a higher (compensable) initial disability rating (or evaluation) for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from October 1943 to April 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  This appeal was processed using both the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS).  Accordingly, any future review of this case should take into consideration the existence of this electronic record.

In the February 2015 Substantive Appeal, the Veteran requested a Board hearing by live videoconference (Videoconference Board hearing).  The Veteran did not appear at the Videoconference Board hearing, which was scheduled for April 6, 2016.  He did not present good cause for not attending, nor did he request that the Board hearing be rescheduled; therefore, the appeal will proceed as the hearing request is considered to have been withdrawn.  38 C.F.R. § 20.702(d) (2015).

The Veteran initiated the appeal process regarding the appeal for a higher initial rating for bilateral hearing loss and for service connection for posttraumatic stress disorder (PTSD) with a July 2013 Notice of Disagreement.  In the February 2015 Substantive Appeal (via VA Form 9), the Veteran explicitly limited the appeal to the issue of a higher initial rating for bilateral hearing loss.  As the issue of service connection for PTSD was not perfected for appellate review by the Veteran following the February 2015 Statement of the Case, it is not in appellate status, and is not before the Board.  See 38 U.S.C.A. § 7105(a) (West 2014).  This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2015).


FINDING OF FACT

For the entire initial rating period on appeal, audiometric and speech recognition testing has revealed, at worst, Level II hearing acuity in the right ear and Level II hearing acuity in the left ear.


CONCLUSION OF LAW

For the entire initial rating period, the criteria for a compensable rating for bilateral hearing loss have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86, 4.87 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Concerning the appeal for a higher initial rating for bilateral hearing loss, because it is an appeal that arises from the Veteran's disagreement with the initial rating following the grant of service connection for bilateral hearing loss, no additional notice is required.  Under these circumstances, since the claim for service connection was granted, there are no further notice requirements under the law with regard to this issue.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims).

VA also satisfied its duty to seek, and assist in the procurement of, relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the electronic file include the Veteran's service treatment records, VA and private treatment records, a VA examination report, and lay statements.

The Veteran underwent a VA examination in March 2013 to assist in determining the current severity of the service-connected bilateral hearing loss.  The Board finds that the VA examination report is thorough and adequate and provides a sound basis upon which to base a decision with regard to the issue adjudicated below.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes related to the service-connected bilateral hearing loss.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Further, under Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), VA examiners are required to address the functional effects, including the effects on occupational and daily functioning, of a veteran's hearing loss.  The VA examiner at the March 2013 audiometric examination addressed the effect of the Veteran's hearing loss on occupational and daily activities, specifically noting the Veteran's report of decreased hearing described as difficulty understanding conversational speech in certain environments.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue of a higher initial rating for bilateral hearing loss has been met.  38 C.F.R. § 3.159(c)(4).  

As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue adjudicated herein.  Mayfield, 444 F.3d at 1328.  Hence, no further notice or assistance is required to fulfill VA's duties to notify and assist the Veteran in the development of the appeal.

Initial Disability Rating for Bilateral Hearing Loss

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015).  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to 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. 

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  Here, the Board will evaluate the issue as an appeal for a higher evaluation of the original award.  In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Id.  

The Board has reviewed all the evidence in the Veteran's electronic file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran is in receipt of a noncompensable (0 percent) disability rating for the service-connected bilateral hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Veteran is seeking a higher (compensable) initial rating for bilateral hearing loss for the initial rating period on appeal, and specifically contends that he is currently wearing hearing aids as a result of the hearing loss severity that is not adequately reflected in the VA examination report.  See July 2013 Notice of Disagreement.

Ratings for bilateral defective hearing range from noncompensable (0 percent) to 100 percent based on 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 audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz or Hz).  To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85.  Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  Table VIA will also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph.  38 C.F.R. § 4.85(c).  

When the pure tone 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

The most relevant evidence for this claim consists of the Veteran's lay statements, the VA examination report, and VA treatment records.  VA treatment reports note the Veteran's audiology treatment and use of hearing aids.  The VA treatment record does not include audiometric and speech recognition test scores.  The VA examination report includes more specifically measured audiometric test scores and speech recognition test scores; therefore, the VA examination test results are more probative evidence for rating bilateral hearing loss than general statements regarding difficulty hearing or general characterizations as to the level of hearing or hearing loss.  

For the entire initial rating period on appeal, the Board finds that the weight of the competent and probative lay and medical evidence demonstrates that a compensable initial rating for bilateral hearing loss is not warranted for any period.  At a VA audiology examination in March 2013, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Avg.
RIGHT
45
70
80
70
66
LEFT
40
70
75
65
63

Speech audiometry revealed speech recognition ability of 94 percent, bilaterally.  Applying the March 2013 findings to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level II hearing loss in the left ear, which warrants a noncompensable (0 percent) rating under Table VII.  38 C.F.R. § 4.85. 

The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) do not apply during this appeal period as the audiometric results of the VA audiometric examinations and the private audiology examination did not show pure tone thresholds of loss of 55 decibels or greater in the four relevant frequencies for the Veteran's ears.  The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz.

In this case, the Veteran has reported the effects of his hearing loss on daily functioning.  Specifically, during the March 2013 VA examination, the Veteran reported that the hearing loss interferes with hearing, and that the Veteran has difficulty understanding conversational speech in certain environments.  This description of the Veteran's hearing loss must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria.  The VA examination report of record includes a thorough hearing examination.  While the Veteran has reported difficulty with hearing, particularly during conversations in certain environments, which he reports has impacted daily functioning, the percentage, bilaterally, of speech recognition reflects high speech discrimination ability.  

The Board acknowledges the Veteran's general belief that the current hearing impairment warrants a higher initial disability rating, the contentions that the VA examination results are inconsistent with the severity of the bilateral hearing loss, and the reports of the impact of hearing loss on his daily life, including that understanding conversations in certain environments are more challenging than understanding speech in a quiet examiner's room.  After consideration of such contentions, the Board finds that the more probative evidence regarding the severity of hearing impairment consists of the specifically measured pure tone threshold average and speech discrimination test results, as reported in the VA examination report by an examiner who also recorded the Veteran's complaints. 

The audiometric examination during the rating period shows that the bilateral hearing loss does not warrant a compensable rating for any period.  The most probative evidence as to the nature and severity of the Veteran's hearing loss are the audiometric findings and speech recognition test results, in combination, which reveal that the hearing loss does not warrant an initial (compensable) rating for any period.  Notwithstanding the general assertion that the test measures do not capture the actual severity of the hearing loss, there is no other competent evidence of record that indicates or suggests that the Veteran's measurable hearing loss is worse than has been demonstrated in the VA examination report.  

The Board recognizes that the Veteran's hearing loss interferes with hearing in conversations, makes hearing in certain environments more difficult; however, the weight of the evidence does not demonstrate that the hearing loss disability is worse than has been recorded at the VA examination, or that the hearing loss has functionally affected the Veteran more severely than has been discussed in the record and addressed by a medical professional.  There is no evidence of record, nor has the Veteran ever asserted, that his hearing loss has caused him to miss work or that his earning capacity has been affected.  The Veteran has not shown that he is functionally unable to communicate with others as a result of the additional difficulty in hearing during conversations in certain environments.  The Board concludes that the audiometric and speech recognition evidence is of great probative value, and that the Veteran's allegations regarding the severity of his hearing loss and functional impairment consistent with the service-connected bilateral hearing loss do not provide a basis for a higher (compensable) rating.  

As such, the evidence of record supports the conclusion that the criteria for a higher (compensable) rating are not met during any time within the initial rating period on appeal.  For these reasons, the Board finds that an initial (or compensable) rating for bilateral hearing loss is not warranted for any period on appeal.  Because the preponderance of the evidence is against the appeal of a compensable initial rating for bilateral hearing loss, the benefit of the doubt doctrine is not for application, and the appeal must be denied.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether referral for extraschedular consideration is warranted.  An extraschedular disability rating is warranted based 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.  38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, 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 the veteran's disability picture requires the assignment of an extraschedular rating.

The Board finds that all the symptomatology and impairment caused by the Veteran's service-connected bilateral hearing loss are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  An audiology examination report must fully describe the functional effects caused by a hearing disability in addition to dictating objective test results.  Martinak, 21 Vet. App. 447.  In this regard, the March 2013 VA examination report addressed the functional effects caused by the Veteran's bilateral hearing loss disability, noting general complaints of having difficulty understanding conversational speech in certain environments.  Although the hearing loss affects the Veteran's daily life, VA treatment records also indicate that the Veteran is prescribed hearing aids.  See June 2013 VA Treatment Record.

The schedular criteria are adequate to rate the Veteran's bilateral hearing loss disability.  The schedular rating criteria specifically provide 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 audiology testing and speech recognition testing.  The Veteran's complaints involve diminished auditory acuity and speech recognition.  Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  Moreover, the testing is to be performed without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  The scores represent a rating made on the worst possible objective measure of performance.  In short, the Veteran does not have any symptoms or impairment from the service-connected bilateral hearing loss disability that is unusual or is different from those contemplated by the schedular rating criteria.

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 symptoms reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life.  In the absence of exceptional factors associated with the bilateral hearing loss, 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).

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.

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised; however, neither the Veteran nor the evidence suggests unemployability due to the bilateral hearing loss.  Rice, 22 Vet. App. at 447.  Thus, the Board finds that an informal claim for a TDIU did not arise.


ORDER

For the entire initial rating period, a higher (compensable) rating for bilateral hearing loss is denied.



____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs