Citation Nr: 1646744	
Decision Date: 12/14/16    Archive Date: 12/21/16

DOCKET NO.  12-31 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a compensable disability rating for service-connected bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Erin J. Carroll, Associate Counsel


NTRODUCTION

The Veteran served on active duty from January 1969 to January 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Board notes that the Veteran was scheduled for a video conference hearing on November 14, 2016.  However, in correspondence of November 5, 2016, the Veteran notified the Board that he was withdrawing his request for a video conference hearing.

FINDINGS OF FACT

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


CONCLUSION OF LAW

The criteria for a compensable rating for bilateral hearing loss are not met. 
38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The VA satisfied its duty to notify by a letter mailed to the Veteran in January 2010 for his increased rating claim.

Relevant to the duty to assist, the Veteran's VA treatment records and private treatment records have been obtained and considered.  He has not identified or provided authorization to obtain any additional, outstanding records and neither he nor his representative has indicated that other outstanding records exist.   

The Veteran was afforded VA audiometric examinations in January 2010 and April 2015 to evaluate the severity of his hearing loss.  The Board finds that the VA examinations are adequate to adjudicate the Veteran's appeal.  As discussed below, the examinations were based upon consideration of the Veteran's pertinent medical history, his lay assertions and complaints, and describe the Veteran's hearing loss in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  Moreover, the examination reports address the functional effects of the Veteran's hearing loss disability for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321 (b).  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

Furthermore, the Veteran has not alleged that his disability has worsened in severity since the most recent VA examination in April 2015. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Thus, with regard to his claim for an increased rating, the Board finds that VA has fully satisfied its duty to assist.

II. Increased Rating for Bilateral Hearing Loss

The Veteran seeks a compensable rating for his service-connected bilateral hearing loss.  Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. 
§ 4.85.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. 

Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. 
§ 4.86. 38 C.F.R. § 4.85 (c).

When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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 will be evaluated separately. 38 C.F.R. § 4.86 (a).

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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.  38 C.F.R. § 4.86 (b).

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

A 10 percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is X and XI; where hearing in the better ear is II and hearing in the poorer ear is V to XI; where hearing in the better ear is III and hearing in the poorer ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear IV to V. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  The next higher evaluation of 20 percent is provided where hearing in the better ear is III and hearing in the poorer ear is VII to XI; where hearing in the better ear is IV and hearing in the poorer ear is VI to VII; or where hearing in the better ear is V and hearing in the poorer ear V and VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Historically, service connection for bilateral hearing loss was established in March 2004, at which time the AOJ assigned a noncompensable percent disability rating pursuant to 38 C.F.R. § 4.86, Diagnostic Code 6100, effective November 20, 2003.

Pertinent evidence includes VA examinations from January 2010 and April 2015, as well as VA treatment records.

The Board acknowledges that, in November 2009, the Veteran submitted a private audiogram.  The audiogram revealed the following puretone thresholds, in decibels:

HERTZ
1000
2000
3000
4000
LEFT
20
25
60
65
RIGHT
20
15
30
45

The air conduction puretone threshold average was 28 in the right ear and 43 in the left ear.  Speech recognition testing revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear.  There is no indication that the Maryland CNC word list was used as required by VA regulation. As a result, the November 2009 audiogram cannot be relied upon to evaluate the severity of the Veteran's bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385.

In January 2010, VA afforded the Veteran a VA audiological examination which revealed the following puretone thresholds, in decibels, as follows:

HERTZ
1000
2000
3000
4000
LEFT
10
25
35
50
RIGHT
20
20
30
45

The puretone threshold averages were 29 in the right ear and 30 in the left ear.  Speech recognition testing revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. 

Using Table VI, these audiometric test results equate to Level I hearing in the right ear, and Level I hearing in the left ear. 38 C.F.R. § 4.85.  Utilizing Table VII, such results in a noncompensable rating. Id.  The examiner diagnosed mild sensorineural hearing loss in both the right and left ears.  The Veteran reported to the examiner that he experienced difficulty hearing.  The examiner opined that the Veteran's hearing loss should not affect functioning in his usual occupation or daily activities.

An August 2014 VA treatment record shows that the Veteran received new hearing aids after a visit with a treatment provider.  In a previous January 2012 VA treatment record, he had reported difficulty hearing due to the static from his hearing aids.

In April 2015, VA afforded the Veteran a VA audiological examination which revealed the following puretone thresholds, in decibels, as follows:

HERTZ
1000
2000
3000
4000
LEFT
30
30
75
80
RIGHT
5
25
50
55

The puretone threshold average was 34 in the right ear and 54 in the left ear. Speech recognition testing revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. Using Table VI, these audiometric test results equate to Level I hearing in the right ear, and Level I hearing in the left ear. 38 C.F.R. § 4.85.  Utilizing Table VII, such results in a noncompensable rating. Id. 

The examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500-4000 Hz) in both his right and left ears.  The Veteran reported having difficulty hearing when there is background noise and when using the telephone.  He also stated that he can hear voices, but has difficulty understanding them during a conversation.  The examiner opined that the Veteran's hearing loss did not impact his ability to work.

Based upon the audiological evidence of record, to include the VA treatment records, the January 2010 and April 2015 VA audiological evaluations, and the Veteran's lay statements, the Board finds that the Veteran's hearing is no worse than Level I hearing in the right ear and Level I hearing in the left ear. As such, a compensable rating for his bilateral hearing loss is not warranted at any point during the appeal period.

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding voices during conversation, as well as difficulty hearing when using the telephone or when background noise is present, 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).

In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.   
38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321 (b (1)).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. 
§ 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321 (b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id. 

In Martinak, the Court held that, unlike the rating schedule for hearing loss, the extra-schedular provisions did not rely exclusively on objective test results to determine whether referral for an extra-schedular rating was warranted. The 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. Id. at 455.

Although evidence has been considered in light of Martinak and the provisions of 38 C.F.R. § 3.321 (b)(1), the Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the currently assigned ratings.  Rather, his description of difficulties with hearing, which includes difficulty hearing when background noise is present, difficulty hearing when using the telephone, and difficulty understanding voices during a conversation, are consistent with the degree of disability addressed by his current evaluation.  In this regard, the Board finds that the rating criteria contemplate the difficulties expressed by the Veteran, and there are no additional symptoms of his bilateral hearing loss that have not been addressed by the rating schedule.

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.

Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. As such, 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).

The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Veteran has not contended that his bilateral hearing loss renders him unemployable.  Moreover, both VA examiners opined that the Veteran's hearing loss does not impact his ability to work.  Therefore, the Board finds that the issue of entitlement to a TDIU is not raised by the Veteran or the record and need not be further addressed.

In conclusion, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100.  Therefore, after reviewing the evidence, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating for bilateral hearing loss.  As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107 (b).


ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.



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



Department of Veterans Affairs