Citation Nr: 1648466 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 12-16-192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial rating in excess of 0 percent for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned at an April 2015 videoconference hearing, and a transcript of the hearing is of record. The Board previously remanded the claim in July 2015. The Board notes that on remand, a new VA examination was conducted, and the claim was readjudicated. Therefore, the Board finds that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT Bilateral hearing loss is manifested by no more than a Level I for the right ear, and no more than Level I for the left ear, and an exceptional pattern of hearing loss is not shown. CONCLUSION OF LAW The schedular requirements for an initial rating greater than 0 percent for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.383, 3.385, 4.85, 4.86 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must 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. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (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 of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated December 2004 and May 2009. Once service connection is granted, the claim is substantiated and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson; 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) Therefore, no further notice is needed with regard to this issue. VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has been provided with multiple VA examinations, most recently in October 2015. The examiners reviewed the claims file and past medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. In addition to providing objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report because of the potential application of 38 C.F.R. § 3.321 (b) in considering whether referral for an extra-schedular rating is warranted. Unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321 (b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the Board concludes that the VA examination reports are adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2016). 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 service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321 (a), 4.1 (2016). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2016). The Veteran contends that his hearing loss disability is of such severity so as to warrant a compensable disability rating. The Veteran is appealing the initial disability rating assigned for this disability. Therefore, the claim requires consideration of the entire time period for which service connection is established and the Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Assignments of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are conducted. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIA, VII (2016). Audiometric evaluations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. 38 C.F.R. § 4.85 (a) (2016). Numeric designations of Levels I through XI are assigned by application of Table VI, in which the percentage of discrimination is intersected with the pure tone decibel loss. 38 C.F.R. § 4.85, Table VI (2016). The results are then applied to Table VII, for a percentage rating. Pure tone threshold average, as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases, including those in 38 C.F.R. § 4.86, to determine the Roman numeral designation for hearing impairment from Table VI or Table VIA. 38 C.F.R. § 4.85(d) (2016). Where pure tone thresholds are 55 decibels or more at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz, either Table VI or Table VIA is applied, and whichever results in the higher numeral shall be applied. 38 C.F.R. § 4.86 (a) (2016). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the higher numeral of Table VI or Table VIA is also applied. 38 C.F.R. § 4.86(b) (2016) If impaired hearing is service-connected in only one ear, the rating is determined by designating I as the level of hearing in the ear in which any hearing impairment is not service-connected. 38 C.F.R. § 4.85(f) (2016). However, with certain levels of hearing impairment, VA regulations provide for hearing impairment in one service-connected ear and one nonservice-connected ear to be compensated as though both disabilities were service-connected. 38 C.F.R. § 3.383(a)(3) (2016). That is done if the service-connected hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more, and hearing impairment in the non-service-connected ear is manifested by an auditory threshold of 40 decibels or greater at the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, auditory thresholds of 26 decibels or greater for at least three of those frequencies, or a speech recognition score less than 94 percent. 38 C.F.R. §§ 3.383(a), 3.385 (2016). The present claim for an increased rating arises from service connection for bilateral hearing loss that was originally granted in an October 2009 rating decision. On VA examination in August 2009, pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 15 60 60 39 LEFT 25 35 65 60 46 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 98 percent in the right ear and 88 percent in the left ear. The examiner opined that the Veteran had sensorineural hearing loss in both ears. During the examination, the Veteran stated that he had difficulty hearing at work, and the examiner noted that impact on the Veteran's occupational activities. Applying the findings of the August 2009 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a rating in excess of 0 percent have not been met. The Veteran's hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86(a) (2016). Under Table VI, the right ear hearing acuity was manifested by a level I impairment, and the left ear was manifested by a hearing acuity of a level I impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent rating for bilateral hearing loss. In an August 2011 statement, the Veteran stated he was wearing hearing devices for hearing loss and that he had a really difficult time understanding clients over the telephone and interacting with clients within the office. The Veteran also noted that his wife noticed a great change with his hearing loss, and he had to repeat herself, especially when there was background noise. On VA examination in June 2012, pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 20 15 60 60 39 LEFT 20 35 65 60 45 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 90 percent in the right ear, and 96 percent in the left ear. The examiner opined that the Veteran had sensorineural hearing loss in both ears. The Veteran told the examiner it was hard to hear conversations, and that he heard the sound of "steady locusts" in his ears since Vietnam. The Veteran had to have people repeat answers to questions, ask to have the television turned up to be able to hear, and had trouble hearing on the telephone. The Veteran also stated hearing had been an ongoing problem and that it affected his entire working career. Applying the findings of the June 2012 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a rating in excess of 0 percent have not been met. The Veteran's hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86(a) (2016). Under Table VI, the right ear hearing acuity was manifested by a level I impairment, and the left ear was manifested by a hearing acuity of a level I impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent rating for bilateral hearing loss. On VA examination in October 2015, pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 35 70 70 50 LEFT 25 40 70 70 51 Speech audiometry testing using a Maryland CNC word list found speech recognition ability of 100 percent in both ears. The examiner opined that the Veteran had sensorineural hearing loss in both ears. The examiner noted there was no functional loss, and no special circumstances. At an April 2015 hearing, the Veteran stated he did not do well on the phone, and that he missed a lot of the conversation. The Veteran stated that unless people were right in front of him during a conversation, he could not hear them, although he acknowledged he did not read lips. In crowded rooms, the Veteran noted his hearing aids picked up surrounding noises. He also stated his wife told him that the television was too loud. Applying the findings of the October 2015 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for a rating in excess of 0 percent have not been met. The Veteran's hearing acuity was measured using 38 C.F.R. § 4.85, Table VI. 38 C.F.R. § 4.86 (a) (2016). Under Table VI, the right ear hearing acuity was manifested by a level I impairment, and the left ear was manifested by a hearing acuity of a level I impairment. Applying those findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent rating for bilateral hearing loss. The Board finds that all of the testing results are contemporaneous and indicative of the severity of the Veteran's current disability. Accordingly, these results are the most probative evidence in determining whether the Veteran's hearing disability warrants a higher disability rating. The Board notes that in addition to providing objective test results, all of the VA audiologists fully described the functional effects caused by the Veteran's hearing disability in their reports. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The audiologists all noted the impact of hearing loss on the Veteran's life, including having the television on loud, and having to have people repeat themselves on the phone and in conversation. The Board has considered the Veteran's statements regarding the severity of his hearing loss, his difficulty hearing other people on the phone and in conversation, and how he feels that effects his work. The Board does not discount the difficulties that the Veteran experiences as a result of his hearing loss. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations. The Board has no discretion in the matter. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Consideration has been given to assigning staged ratings. However, at no time during the period under review has the disability warranted a higher schedular rating than those ratings currently assigned. The Board accepts the test results as reliable. As the mechanical application of the rating schedule results in a 0 percent rating in each VA examination, the preponderance of the evidence is against a finding that a higher rating is warranted on a schedular basis. Thus, the Veteran's claim for a higher schedular rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Other Considerations Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors which would make application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). An extraschedular rating is warranted based upon a finding that 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 would make impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2016). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 rate 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, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the rating criteria for hearing loss reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. The evidence does not show anything unusual or exceptional that would make the schedular criteria inadequate in this case. In the case at hand, the record shows that the manifestations of the disability are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the hearing loss disability is in excess of that contemplated by the assigned ratings. A higher rating is available for more severe levels of impairment, but the Veteran does not meet the criteria for the higher rating. The evidence does not show frequent hospitalizations or that hearing loss caused marked interference with employment or prior employment. Therefore, the Board finds that referral for extra-schedular consideration is not warranted. Further, although the Veteran's hearing loss has affected some activities, he has not claimed that the hearing loss has caused him to be unemployable. Consequently, further analysis of whether the service-connected disability has caused the Veteran to be unemployable is not required. Rice v. Shinseki, 22 Vet. App. 447 (2009); Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board finds that issue of entitlement to an unemployability rating has not been raised. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for hearing loss, and the claim must be denied. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 0 percent for a bilateral hearing loss disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs