Citation Nr: 1631256 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 12-30 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a compensable rating for service-connected left ear hearing loss. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1957 to June 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in May 2016 before the undersigned Veterans Law Judge (VLJ). During the hearing, the undersigned took testimony on two issues - the issue on the title page and entitlement to service connection for right ear hearing loss. The undersigned, upon reviewing the file after the hearing, determined the latter issue is not on appeal. Specifically, the Board denied service connection for right ear hearing loss in October 2012. The Veteran did not appeal this denial or seek reconsideration of it, either after receiving it in 2012 or in response to the RO's November 2015 letter on the subject. Therefore, it is not on appeal, and the undersigned apologizes for the confusion. During the hearing, the undersigned engaged in an appropriate discussion with the Veteran on the issue presently decided. The Veteran did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id at 496-97. The Veteran has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. During the pendency of the appeal, the Veteran's average puretone thresholds were no greater than 26.25 in the left ear and speech recognition scores were not less than 96 percent in the left ear. 2. During the pendency of the appeal, the Veteran was shown to have left ear hearing loss, at worst, of level I. CONCLUSION OF LAW The criteria for a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. In addition, the duty to assist the Veteran has been satisfied in this case. All available relevant evidence pertinent to the issue on appeal is in the claims file, including the Veteran's service treatment records, post-service treatment records, VA examination reports and statements from the Veteran. VA examined the Veteran in August 2008, October 2011, and November 2015 for compensation purposes. 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). The Board finds that the examinations were adequate. The examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected disability under the applicable rating criteria. 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). Moreover, the Veteran has not objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). VA has obtained the available records and medical evidence to determine this claim. Hence, no further notice or assistance 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Bilateral Hearing Loss Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Where impaired hearing is service connected in only one ear, the non-service connected ear will generally be assigned a Roman numeral I rating purposes. Id. For exceptional hearing impairment, 38 C.F.R. § 4.86 states that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or 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 for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. A March 2008 private audiological examination and VA compensation examinations in August 2008, October 2011, and November 2015 are of record. The March 2008 examination yielded test results of puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz of 5, 15, 25, and 40 decibels, respectively, for an average over the four frequencies of interest of 21.25 decibels. Speech audiometry test results revealed speech recognition ability of 100 percent in the left ear. These results show that the Veteran does not have exceptional hearing impairment in his left ear as contemplated in 38 C.F.R. § 4.86. It is unclear if the private examiner used the Maryland CNC speech recognition test to examine the Veteran. Therefore, the Board will evaluate the results in a manner most favorable to the Veteran. Assuming the examiner used the CNC test, application of 38 C.F.R. § 4.85 Table VI is appropriate. Applying Table VI to the 2008 measurements results in assignment of Roman Numeral I to the left ear and Roman Numeral I, pursuant to 38 C.F.R. § 4.85(f), to the right ear, for the purpose of determining a disability rating. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. In contrast, assuming the examiner did not use the CNC test, Table VIa must be used, notwithstanding 38 C.F.R. § 4.86. This results in assignment of Roman Numeral I to the left ear and Roman Numeral I, pursuant to 38 C.F.R. § 4.85(f), to the right ear, for the purpose of determining a disability rating. As above, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. The August 2008 examination yielded test results of puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz of 10, 10, 30, and 40 decibels, respectively, for an average over the four frequencies of interest of 22.5 decibels. Speech audiometry test results revealed speech recognition ability of 100 percent in the left ear. These results show that the Veteran does not have exceptional hearing impairment in his left ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the August 2008 measurements results in assignment of Roman Numeral I to the left ear and Roman Numeral I, pursuant to 38 C.F.R. § 4.85(f), to the right ear, for the purpose of determining a disability rating. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. The October 2011 examination yielded test results of puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz of 10, 15, 35, and 45 decibels, respectively, for an average over the four frequencies of interest of 26.25 decibels. Speech audiometry test results revealed speech recognition ability of 96 percent in the left ear. These results show that the Veteran does not have exceptional hearing impairment in his left ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the October 2011 measurements results in assignment of Roman Numeral I to the left ear and Roman Numeral I, pursuant to 38 C.F.R. § 4.85(f), to the right ear, for the purpose of determining a disability rating. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. The November 2015 examination yielded test results of puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz of 5, 15, 35, and 50 decibels, respectively, for an average over the four frequencies of interest of 26.25 decibels. Speech audiometry test results revealed speech recognition ability of 100 percent in the left ear. These results show that the Veteran does not have exceptional hearing impairment in his left ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the November 2015 measurements results in assignment of Roman Numeral I to the left ear and Roman Numeral I, pursuant to 38 C.F.R. § 4.85(f), to the right ear, for the purpose of determining a disability rating. A noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. Here, the VA examiners noted that the Veteran would likely have difficulty hearing in situations with background noise. Based on all the above evidence, the Board finds a compensable rating is not warranted at any time during the period on appeal. Nevertheless, the undersigned wishes to clarify the Veteran's disability situation for him based on his multiple submissions and testimony. VA has service connected the Veteran's left ear only. Service connection for hearing loss in the right ear was denied and not appealed. The Veteran, in statements VA received in August 2012 and October 2012 has conflated two separate, but related issues - service connection and compensation. Once VA has service connected a disability, VA rates the degree of disability - and determines the amount of compensation, if any - based on the agency's Schedule of Ratings, as published in the Code of Federal Regulations. For the reasons demonstrated above, the undersigned has determined, pursuant to the Schedule of Ratings, the Veteran's degree of disability is not compensable. Extraschedular In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not the Veteran raised them. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The Board finds that the schedular evaluation assigned for the Veteran's service-connected disability is adequate. The audiological examinations are adequate under Martinak because they noted the functional effects of the Veteran's hearing loss. The Board also finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran has not complained of any exceptional or unusual features of his hearing disability. His hearing impairment is not shown to have impacted him in any exceptional or unusual way. Thus, his disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate. As a result, further inquiry into extraschedular consideration is moot. Consequently, the Board finds that the Veteran is not entitled to referral for an extraschedular rating. Thun, 22 Vet. App. at 115. ORDER A compensable disability rating for service-connected left ear hearing loss is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs