Citation Nr: 1632027	
Decision Date: 08/11/16    Archive Date: 08/23/16

DOCKET NO.  14-13 669	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial, compensable disability rating for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Paul D. Bradley, Agent


ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1953 to August 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for bilateral hearing loss, and assigned an initial noncompensable rating, effective June 15, 2010.

In November 2014, the Board remanded the Veteran's claim for further development.  The claim has returned for further appellate review.  The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the November 2014 remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

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

During the appeal period, the Veteran's bilateral hearing loss has been manifested, at its worst, by Level II hearing in the right ear and Level III in the left ear.


CONCLUSION OF LAW

The criteria for an initial, compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2015).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  Proper VCAA notice must inform the claimant of any information and 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)(1).

With respect to the Veteran's claim, he has not alleged that VA has not fulfilled its duty notify or assist in the development of his claim.  Moreover, review of the record fails to reveal any deficiency with respect to either the duty to notify or assist.  Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

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 that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

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.

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 audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, 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.

In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  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 pure tone audiometry 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 pure tone 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.  Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical.  38 C.F.R. § 4.86(b).  That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately.  Id.

In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007),  the United States Court of Appeals for Veterans Claims (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.  Id.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

Historically, service connection for bilateral hearing was established in November 2011, at which time the AOJ assigned an initial noncompensable percent disability rating pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100, effective June 15, 2010, the day the Veteran's claim for service connection was received.

Pertinent evidence includes VA examinations from September 2011 and May 2016, VA treatment records, and private treatment records.

In connection with his claim for service connection, the Veteran underwent a VA examination in September 2011, which revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
15
15
20
50
LEFT
20
15
30
65

The puretone threshold average was 25 in the right ear and 32.5 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.  The Veteran was diagnosed with moderate sensorineural hearing loss in the right ear and normal to moderately severe sensorineural hearing loss in the left ear.  The examiner also noted that there were no significant effects on the Veteran's ability to work.

These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing resulted in a 0 percent disability rating.  38 C.F.R. § 4.85.  

In June 2013, the Veteran underwent a private audiogram.  During the examination, he described problems with one-on-one conversation, hearing the television, small groups, background noises, and communication difficulties.  The audiogram revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
30
30
35
80
LEFT
35
35
30
65

The puretone threshold average was 43.75 in the right ear and 41.25 in the left ear.  Speech recognition testing revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear; however, it is unclear if the Maryland CNC speech recognition test was used.

Assuming that the Maryland CNC was used, these audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI.  38 C.F.R. § 4.85, and the Veteran's hearing warrants no more than a 0 percent disability rating.  38 C.F.R. § 4.85.  

An August 2014 VA treatment record noted the Veteran's complaint of hearing his wife and others in conversation.  The Veteran's puretone thresholds, in decibels, are as follows:

HERTZ
1000
2000
3000
4000
RIGHT
35
30
55
90
LEFT
35
25
35
75

The puretone threshold average was 52.5 in the right ear and 42.5 in the left ear.  Speech discrimination was 84 percent in the right ear and 80 percent in the left ear.  He was diagnosed with bilateral mild to severe, sensorineural hearing loss.

Once again, it is unclear if the Maryland CNC test was used.  However, as above, assuming that the Maryland CNC was used, these audiometry test results equate to Level II in the right ear and Level III in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing resulted in a 0 percent disability rating.  38 C.F.R. § 4.85.

In May 2016, the Veteran underwent a new VA examination, which revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
RIGHT
15
20
45
65
LEFT
20
30
30
70

The puretone threshold average was 36.5 in the right ear and 37.5 in the left ear.  Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear.  The Veteran was diagnosed with sensorineural hearing loss in both ears.  The examiner also noted that the Veteran's hearing loss resulted in significant difficulty hearing in the presence of other noise as well as problems talking on the phone.

These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, the Veteran's hearing resulted in a 0 percent disability rating.  38 C.F.R. § 4.85.

The Board notes that Table VIA is not applicable because the neither VA examiners indicated that speech discrimination testing was inappropriate for the Veteran, and the examination did not show the Veteran's threshold to be 55 decibels or more at each of the four specific frequencies (1000, 2000, 3000, and 4000 Hertz), or that his puretone threshold was 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz.  See 38 C.F.R. §§ 4.85(c), 4.86(a).

In summary, based on the VA audiological examination of record, the Board finds that the Veteran's hearing was no worse than Level II in the right ear and Level III in the left ear.  Thus, the Veteran is not entitled to an initial compensable rating for his bilateral hearing loss.

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that, while he is competent to report symptoms such as difficulty hearing higher voices or in crowds and understanding speech when around multiple people, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Therefore, based on the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for his bilateral hearing loss.  Of the four examinations highlighted above, none of the examinations reveal audiological evaluations that would warrant a compensable rating.

Other Considerations

The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that his hearing acuity has not warranted a compensable rating at any time during the appeal period.  Therefore, assigning any staged rating(s) is not warranted.

Additionally, the Board has contemplated whether the case should be referred for extraschedular consideration.  An extraschedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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.  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.

Second, 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 "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id. 

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 evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

Specifically, the Veteran indicated he has difficulty hearing in crowds, in conversation, and watching television, as well as problems understanding speech when around multiple people.  The Board notes that 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.  In this regard, 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). 

The Board notes that, pursuant to 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 evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.    However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated 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 bilateral hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated.  There are no additional symptoms of his bilateral hearing loss that are not addressed by the rating schedule.  The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability.  The rating schedule is adequate to evaluate the Veteran's disability picture.  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).  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In this regard, the Veteran has not contended that his bilateral hearing loss alone renders him unemployable.  Moreover, while the May 2016 VA examiner noted that such would impact the ordinary conditions of his daily life, including his ability to work, the examiner did not indicate that such would render him unemployable.  Therefore, the Board finds that the issue of entitlement to a TDIU has not been raised by the Veteran or the record and need not be further addressed.

Finally, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating for bilateral hearing loss.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to an initial, compensable rating for bilateral hearing loss is denied.




____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs