Citation Nr: 1641597 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 08-23 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability rating for bilateral hearing loss rated as 10 percent disabling prior to July 23, 2015. 2. Entitlement to an increased disability rating for bilateral hearing loss rated as 20 percent disabling from July 23, 2015. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from December 1954 through November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was remanded by the Board in May 2015 for further development, to include arranging the Veteran to undergo a new VA examination of his hearing loss followed by readjudication by the agency of original jurisdiction (AOJ). During the course of that development, the RO issued a November 2015 rating decision in which it granted a higher 20 percent disability rating for bilateral hearing loss, effective from July 23, 2015. Neither the Veteran nor his representative has expressed satisfaction with that partial grant; hence, he is presumed to be seeking the maximum available benefit in relation to his hearing loss and the Board retains appellate jurisdiction over the matter. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted in the Board's previous remand, the Veteran has withdrawn previous requests for a Board hearing. Neither he nor his representative has made a renewed hearing request. 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. Prior to July 23, 2015, the Veteran's bilateral hearing loss, at worst, was productive of Level II hearing loss in the Veteran's right ear and Level VII hearing loss in his left ear which caused him difficulty in understanding speech. 2. From July 23, 2015, the Veteran's bilateral hearing loss has been productive of Level III hearing loss in the Veteran's right ear and Level VIII hearing loss in his left ear which caused him difficulty in understanding speech. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for bilateral hearing loss prior to July 23, 2015 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.85, 4.86 (2015). 2. The criteria for a disability rating higher than 20 percent for bilateral hearing loss from July 23, 2015 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.85, 4.86 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). A May 2010 letter provided the Veteran with notice of the information and evidence needed to substantiate his claims for increased disability ratings for hearing loss. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's claim submissions, lay statements, VA treatment records, identified and relevant private treatment records, and Board hearing transcript are associated with the record. The Veteran was afforded VA examinations of his hearing loss in August 2009, June 2011, and July 2015. Those examinations, considered along with the other evidence of record, are fully adequate for the purposes of determining the symptoms and impairment associated with the Veteran's hearing loss and the severity thereof. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Disability Ratings for Hearing Loss Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings applies, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the disability rating being appealed is the initial rating that was assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is in favor of the claim. If it is not, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. In cases where the issue is one concerning the disability rating to be assigned for a hearing loss disability, 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 are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a) (2015). In rating hearing loss disabilities, VA must first determine the Roman numerical designation for hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. For example, if audiometric testing shows an average pure tone threshold of 60 decibels in the right ear and Maryland CNC testing shows the percentage of discrimination of 70 percent in the right ear, the numeric designation level is "V" for the right ear. In the example, the same procedure would be followed to determine the Roman numerical designation for the left ear. 38 C.F.R. § 4.85 (b) (2015). In instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85 (h), Table VIa. Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or, (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. If an exceptional pattern of hearing impairment is shown, Table VIa permits VA to determine the Roman numerical designation of hearing impairment based solely on demonstrated pure tone threshold averages. After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII (2015). Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). For example, if the poorer ear has a Roman numerical designation of "VII" while the better ear has a numeric designation level of "V," the assigned disability rating is 30 percent. 38 C.F.R. § 4.85 (e) (2015). A. Prior to July 23, 2015 The Veteran's claim for a higher disability rating for bilateral hearing loss was received in May 2009. At that time, his hearing loss disability was rated 10 percent disabling. Turning to the evidence relevant to the period before July 23, 2015, the Board notes that the Veteran received VA treatment for various disorders and illnesses. The VA treatment records show, however, that he has not undergone any treatment for his hearing loss specifically. Audiometric tests conducted in August 2009 showed the following pure tones: HERTZ 1000 2000 3000 4000 RIGHT 25 50 40 50 LEFT 30 60 80 70 Based on the above data, the average pure tones from the May 2008 test were 41 decibels in the Veteran's right ear and 60 decibels in his left ear. Speech recognition tests, which were conducted via Maryland CNC test, indicated speech recognition abilities of 98 percent in the Veteran's right ear and 70 percent in his left ear. The foregoing audiometric pure tones do not equate to an exceptional pattern of hearing loss; hence, the Roman numerical designations for the Veteran's hearing impairment during the August 2009 examination will be determined by application of Table VI. In that regard, the foregoing pure tone averages and speech recognition scores correspond to Level I hearing loss in the Veteran's right ear and Level V hearing loss in his left ear. Under Table VII, those Roman numerical designations equate to a non-compensable disability rating. The Veteran's hearing loss was re-examined in June 2011. Audiometric tests conducted at that time revealed the following pure tones: HERTZ 1000 2000 3000 4000 RIGHT 25 45 35 55 LEFT 50 60 75 75 The averages of the pure tones shown during the June 2011 examination are 40 decibels in the Veteran's right ear and 65 decibels in his left ear. Speech recognition tests, again conducted via Maryland CNC test, indicated speech recognition abilities of 88 percent in the Veteran's right ear and 56 percent in his left ear. The pure tones shown during the June 2011 examination are not consistent with an exceptional pattern of hearing loss in either ear. Application of Table VI to the foregoing pure tone averages and speech recognition scores reveals Level II hearing loss in the Veteran's right ear and Level VII hearing loss in his left ear. Under Table VII, those Roman numerical designations equate to a 10 percent disability rating. B. From July 23, 2015 Based on audiometric findings shown during a VA examination conducted in July 23, 2015, the RO granted a higher 20 percent disability rating for the Veteran's hearing loss, effective from the date of the examination. The Veteran has not indicated satisfaction with that partial grant. A review of the record shows that the Veteran has continued to receive VA medical treatment. The corresponding records, however, show that he has not received any specific treatment for his hearing loss. Indeed, the VA treatment records contain no new audiometric information or data pertaining to the Veteran's hearing loss since July 23, 2015. Audiometric tests conducted during the July 2015 VA examination revealed the following pure tones: HERTZ 1000 2000 3000 4000 RIGHT 45 60 70 80 LEFT 65 85 95 85 Based on the above data, the average pure tones were 64 decibels in the Veteran's right ear and 83 decibels in his left ear. Speech recognition tests, which were conducted via Maryland CNC test, indicated speech recognition abilities of 86 percent in the Veteran's right ear and 56 percent in his left ear. Here, the pure tones shown during the July 2015 examination indicate the existence of an exceptional pattern of hearing loss in the Veteran's left ear. Under Table VIa, the pure tone average shown in that ear (83 decibels as noted above) corresponds to Level VII hearing loss in his left ear. The Board observes, however, that application of Table VI is actually more advantageous to the Veteran because it reveals Level VIII hearing loss in his left ear. As such, the Board accepts the more advantageous application under Table VI and finds that the Veteran does have Level VIII hearing loss in his left ear for rating purposes. In the Veteran's right ear, application of Table VI shows Level III hearing loss. Application of Table VII to the foregoing Roman numerical designations equate to a 20 percent disability rating. C. Conclusions Based on the evidence, the Veteran is not entitled to a disability rating higher than 10 percent prior to July 23, 2015, or, higher than 20 percent from July 23, 2015 for his bilateral hearing loss. The Board is cognizant of the Veteran's reported difficulties in understanding conversational speech. Although the Board is sympathetic to those difficulties, it must be noted that "disability ratings for hearing impairment are 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). In the absence of contrary audiometric evidence, the "mechanical application" of the diagnostic criteria to the evidence at hand clearly establishes that the Veteran is not entitled to higher disability ratings. In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extra-schedular consideration. The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321 (b) does not rely exclusively on objective test results to determine whether an extra-schedular rating is warranted. See Martinak, 21 Vet. App. at 455. Here, the August 2009 and June 2011 VA examinations do not note any specific complaints of functional impairment. Simultaneously, the Veteran does not report any functional impairment in his claim submissions, nor has he provided any lay statements in which he reports any impairment associated with his hearing loss. Notably, the Veteran reported during the July 2015 VA examination that his functional impairment consists of difficulty in understanding speech. To that extent, the examiner opined, the Veteran's hearing loss was impacting his ordinary conditions of daily life. Under the circumstances, the July 2015 VA examination report is in compliance with Martinak. Hence, the evidence of record is sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321 (b). In Thun v. Peake, 22 Vet App 111 (2008), the United States Court of Appeals for Veterans Claims established a three-step inquiry for determining whether an extra-schedular rating is warranted by the evidence. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 of the Compensation and Pension Service to determine whether, in order to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Considering the first prong under Thun, the Board concludes that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Given the same, the Board finds that the difficulties caused by the Veteran's hearing loss are contemplated fully in the defined regulations and rating criteria. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. To conclude, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted. The Board has also considered whether further "staged" disability ratings for the Veteran's hearing loss are warranted by the evidence. The evidence shows, however, that the severity and impairment associated with the Veteran's hearing loss has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for staged disability ratings in this case beyond those already assigned. Based upon the foregoing, the evidence does not support the assignment of a disability rating higher than 10 percent prior to July 23, 2015, or, a disability rating higher than 20 percent from July 23, 2015 for the Veteran's bilateral hearing loss. This appeal is denied. 38 C.F.R. §§ 4.3, 4.7 (2015). ORDER An increased disability rating for bilateral hearing loss rated as 10 percent disabling prior to July 23, 2015 is denied. An increased disability rating for bilateral hearing loss rated as 20 percent disabling from July 23, 2015 is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs