Citation Nr: 1643117 Decision Date: 11/09/16 Archive Date: 12/01/16 DOCKET NO. 13-35 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1962 to March 1967. This mattes comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for right ear hearing loss, assigning a noncompensable initial evaluation, and denied service connection for left ear hearing loss. The Board granted service connection for left ear hearing loss and remanded the claim for a compensable initial evaluation for bilateral hearing loss in May 2016. In February 2016, the Veteran presented sworn testimony during a Travel Board hearing in Nashville, Tennessee, which was chaired by the undersigned. A transcript of that hearing has been associated with the claims file. 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). FINDING OF FACT For the entire period on appeal, the Veteran's right ear hearing loss has had a Numeric Designation of no greater than II as per Table VI of the VA schedule of ratings; the Veteran's left ear hearing loss has had a Numeric Designation of no greater than II as per Table VI of the VA schedule of ratings. CONCLUSION OF LAW The criteria for a compensable initial disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2015). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. An August 2009 letter provided all required notice elements, including what evidence VA would seek to obtain and what evidence the Veteran was expected to provide, what was required to establish service connection, and information regarding disability ratings and effective dates. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA's duty to assist has also been satisfied. Service treatment records, VA examination reports, and VA treatment records are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time referenced other available and relevant records that he wanted VA to obtain or that he felt were relevant to his claim. The Veteran has undergone several VA examinations for his hearing loss. Most recently, he was examined in September 2016. The examinations involved a thorough examination of the Veteran, consideration of his lay statements/history, and a conclusion that was supported by sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, the examiners addressed the functional effects of the Veteran's hearing loss disability in compliance with Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is also no evidence (lay or medical) of any material worsening of the Veteran's service-connected hearing loss since the September 2016 examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). A new VA examination is not necessary at this time. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). The claim was remanded to the Agency of Original Jurisdiction (AOJ) in May 2016 to schedule the Veteran for a new VA examination. As noted above, the Veteran was afforded a VA examination in September 2016. The claim was then readjudicated in a September 2016 supplemental statement of the case. Accordingly, all remand instructions issued by the Board have been substantially complied with and the case is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran has been assigned an initial noncompensable evaluation for his service-connected bilateral hearing loss. He seeks a higher rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2015). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2015). The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2015). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 (2015). The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2015). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. None of the audiometric results for either ear meet the criteria for Table VIA under 38 C.F.R. § 4.86(a) or (b). As such, the Veteran's right and left ear hearing loss may only be evaluated under Table VI. The Veteran has argued that his hearing loss is more severe than is reflected by his 0 percent evaluation. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159 (a)(1) (2015) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, while the Veteran is clearly competent to describe what he experiences (diminished hearing), he is unable to provide competent evidence as the audiometry or measured level of his hearing loss to support a higher disability rating. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court) 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. The Court also noted, however, that even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran was first examined for his hearing loss claim in January 2010. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 50 65 LEFT 30 25 30 55 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. Puretone threshold averages were 40 decibels for the right ear and 35 decibels for the left ear. The examiner noted the Veteran's complaints of difficulty understanding conversations when it is noisy. According to 38 C.F.R. § 4.85, the right ear had a designation of II and the left ear had a designation of I, based on Table VI. The point where II and I intersect on Table VII indicates a disability rating of 0 percent. The Veteran was next afforded a VA audiological examination in December 2010. At that time, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 45 70 LEFT 20 25 35 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Puretone threshold averages were 37.5 decibels for the right ear and 35 decibels for the left ear. The examiner noted that the Veteran's hearing loss had no significant effects on his occupation and no effects on his usual daily activities. According to 38 C.F.R. § 4.85, the right ear had a designation of II and the left ear had a designation of I, based on Table VI. The point where II and I intersect on Table VII indicates a disability rating of 0 percent. He was next examined for his hearing loss disability in September 2013. At that time, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 55 65 LEFT 20 25 25 55 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear. Puretone threshold averages were 38.75 decibels for the right ear and 31.25 decibels for the left ear. The examiner noted the Veteran's complaints of difficulty hearing if his back is turned and an inability to hear his wife from another room. According to 38 C.F.R. § 4.85, both ears had a designation of I based on Table VI. The point where I and I intersect on Table VII indicates a disability rating of 0 percent. The Veteran was most recently examined for his hearing loss disability in September 2016. At that time, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 65 70 LEFT 30 40 65 70 Speech audiometry revealed speech recognition ability of 88 percent in both ears. Puretone threshold averages were 50 decibels for the right ear and 51.25 decibels for the left ear. The Veteran reported that he had difficulty understanding speech, especially in the presence of background noise, at a distance, or when around loud noises. According to 38 C.F.R. § 4.85, both ears had a designation of II based on Table VI. The point where II and II intersect on Table VII indicates a disability rating of 0 percent. In addition to the VA examinations, the medical evidence includes VA treatment records pertaining to the Veteran's hearing loss disability. These treatment records note the Veteran's complaints of difficulty hearing and that he has been fitted for hearing aids, but do not include any additional and usable audiometric results from the appeals period. As the Veteran's hearing loss has been tested with reliable results and the Veteran has not claimed that these results were in any way invalid or that his hearing loss has worsened since his September 2016 VA examination, the Board finds that the Veteran's bilateral hearing loss does not warrant an initial compensable rating. Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the 0 percent evaluation assigned during the appeals period. The assignment of staged ratings is not warranted. See Fenderson, supra. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an initial compensable evaluation, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 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. Yancy v. McDonald, 27 Vet.App. 484 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) on a collective basis is not warranted in this case. On an individual basis, the Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with the Veteran's 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's particular disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, 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, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the Veteran's hearing loss disability outside the usual rating criteria. A comparison between the level of severity and symptomatology of the hearing loss disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran has not described any unusual features associated with his hearing loss disability. The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. The Veteran's disability picture is adequately contemplated by the rating schedule. As the threshold issue under Thun is not met, any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs