Citation Nr: 1619226 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 13-03 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for strain, right hip. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dustin Ware, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to January 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) San Diego, California and an October 2014 rating decision of the VA RO Houston, Texas. The Veteran testified before the Board at a February 2016 hearing conducted at the RO. A transcript of the hearing is of record. The issue of entitlement to a rating in excess of 10 percent for strain, right hip, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During the appeals period, the Veteran's bilateral hearing loss is shown to result in, at worst, Level III hearing acuity bilaterally, which warrants a noncompensable rating under 38 C.F.R. § 4.85, Table VII. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA must notify a claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, 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 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In light of the above, the Board finds that no useful purpose would be served by delaying appellate review to send out additional notice letters. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Post-service VA treatment and non-VA treatment records are associated with the claims file. In regards to his hearing loss claim, the Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159 (2015). The Veteran was afforded VA examinations in March 2014 and October 2015. These examinations are adequate for the purpose of evaluating the Veteran's disability, as they involved reviews of the Veteran's pertinent medical history as well as clinical evaluations of the Veteran, and provided adequate discussions of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis The Veteran claims entitlement to an initial compensable rating for bilateral hearing loss. His service-connected hearing loss is rated under the criteria of 38 C.F.R. § 4.87, Diagnostic Code 6100. A. Rating Schedule Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating; that is, be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is 'V' for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. For example, if the better ear has a numeric designation level of 'V,' and the poorer ear has a numeric designation level of 'VII,' the percentage evaluation is 30 percent. 38 C.F.R. § 4.85(e). Additionally, an alternate rating table (Table VIA) may be used for 'unusual patterns of hearing impairment,' including cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or where the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Turning to the evidence of record, a March 2014 VA audiology examination recorded pure tone threshold, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 45 45 50 50 47.5 Left 40 40 45 45 42.5 Speech recognition was 88 percent bilaterally. Entering the average pure tone thresholds and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is II bilaterally. 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. See 38 C.F.R. § 4.85. An October 2015 audiology examination recorded pure tone threshold, in decibels, as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 20 25 40 45 32.5 Left 20 25 45 50 35 Speech recognition was 80 percent bilaterally. Entering the average pure tone thresholds and speech recognition scores into Table VI reveals the numeric designation of hearing impairment is III bilaterally. 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. See 38 C.F.R. § 4.85. At the February 2016 Board hearing the Veteran testified to the severity of the noise he was exposed to during service. He also discussed this in his April 2015 Notice of Disagreement and September 2015 VA Form 9. However, when rating a hearing loss disability pursuant to the Ratings Schedule the Board is concerned with the severity of hearing loss during the appeals period as measured by puretone audiometry testing and the Maryland CNC controlled speech discrimination testing. 38 C.F.R. § 4.85 (2015). The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, comparison of these test result to the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Put more simply, the Board is concerned with the current degree of hearing impairment and the resulting functional impairment not the severity of previous noise exposure. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing. 38 C.F.R. § 3.159(a)(2) (2015); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including pure tone audiometry testing and Maryland CNC controlled speech discrimination testing. Because he is not competent to provide probative evidence in this regard, there is necessarily no need to additionally consider the credibility of his lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In summation, there is no pure tone audiometry test of record that indicates a compensable evaluation for bilateral hearing loss is warranted. The record also does not reflect exceptional patterns of hearing impairment warranting consideration of alternative rating under § 4.86. Accordingly, the claim for entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted, ratings for hearing loss are determined by a mechanical application of the pure tone audiometry findings to the rating provisions and the Board is constrained by the applicable laws and regulations. See Lendenmann at 349. B. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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 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. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. 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 Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. The Veteran's bilateral hearing loss has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by hearing impairment. 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). However, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating is warranted. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in their final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). A review of the March 2014 and October 2015 VA examinations reflects that the examiners provided adequate descriptions of the functional effects of the Veteran's hearing loss. The March 2015 audiologist reported the Veteran responded he is unable to hear well when asked to comment on the impact of his hearing disability on the condition of daily life, including ability to work. At the October 2015 examination, in regards to the same question, the Veteran reported difficulty hearing and understanding conversations, especially without the use of visual cues, and indicated he often has to ask others to repeat themselves. The reported functional effects illustrate difficulty with hearing acuity. Such functional impairment is a disability picture that is contemplated in the regulations and rating criteria as noted in the Federal Register cited above. The fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Hearing loss, by its very nature, involves a difficulty with hearing acuity. Thus, his reported symptoms are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture. The evidence does not reflect, and the Veteran has not alleged, that his hearing loss disability is manifested by other symptoms such as loss of another sense, migraines, ear pain, or speech difficulties. The Board finds that the first prong of Thun has not been met. Finally, the Board notes that entitlement to a total disability evaluation based on individual unemployability (TDIU) is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, while the March 2014 and October 2015 VA examination report indicates that the Veteran's hearing loss has some impact on the ordinary condition of daily life, including ability to work, this does not appear to be such a marked interference with employment that further consideration of a claim for TDIU is appropriate. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial compensable rating for bilateral hearing loss is denied. REMAND The Veteran also claims entitlement to a rating in excess of 10 percent for strain, right hip. The Veteran was scheduled for a VA examiner in December 2014, in relation to this claim, for which he failed to appear. The Veteran testified that his failure to appear was a result of not knowing the date of the examination. He said he received a letter from VA informing him an examination needed to be schedule and requesting he call a phone number to schedule the examination. The Veteran reported he called the number repeatedly and also left a call back number but was never able to reach anyone. Subsequently, the Veteran was provided a VA examination of his left hip and thigh in March 2015 in relation to a separate claim for service connection. The resulting examination report also discusses the Veteran's right hip symptomatology. However, to the extent the examination report discusses the right hip symptomatology it is inadequate as the section of the report addressing whether the Veteran's hip disability impacts his ability to perform any type of occupation task was left blank by the examiner. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2015). Moreover, the Veteran testified to his right hip disability causing problems with stability. The March 2015 VA examiner, in response to the question does the Veteran report that flare-ups impact the function of the hip or thigh, indicated the Veteran has fallen several times in the last month. The way this question is phrased suggests the examiner is simply relating the Veteran's self-reported instability results from his right hip. As well, the Veteran is service connection for other disabilities that could cause instability such as right knee strain and right ankle large posterior calcaneal spur. Therefore, the Board would also ask that the new VA examiner specifically comment on whether the Veteran's right hip disability causes instability and, if so, comment on the severity of the instability. Additionally, the Veteran testified to having fallen because of right hip instability including a November 2015 fallen in which he sought treatment at the Harlingen, Texas VA facility. A review of the evidence shows the most recent VA treatment record association claims file is from June 1, 2015. As the claim is being remanded the Board finds this opportunity should be used to obtain more recent VA treatment records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, VA treatment records generated since June 1, 2015. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the Agency of Original Jurisdiction determines that the records sought do not exist or that further efforts to obtain those records would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2015). 2. Following completion of item (1), schedule the Veteran for a VA examination to determine the current severity and extent of his strain, right hip. The examiner must review the claims folder in conjunction with the examination. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. In addition, the VA examiner is asked to: (a) Address whether the Veteran's right hip disability results in instability. In answering this question please discuss the Veteran's assertions that he has fallen as a result of right hip instability. (b) In the event the Veteran's right hip disability is found to cause instability, please comment on the severity of the instability using terms such as slight, moderate, and severe. (c) Address the impact of the right hip disability on the Veteran's ability to perform any type of occupation task. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs