Citation Nr: 1720249	
Decision Date: 06/07/17    Archive Date: 06/21/17

DOCKET NO.  11-21 754	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

David A. Brenningmeyer, Counsel


INTRODUCTION

The appellant was a member of the Army National Guard of Mississippi from March 1976 to March 1989.  His service included, among other things, a period of active duty for training from July 1976 to November 1976.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  The RO, in pertinent part, granted service connection and a zero percent (noncompensable) rating for bilateral hearing loss, effective September 12, 2007.

In April 2013, the appellant testified before the undersigned Veterans Law Judge at a Board hearing held at the RO.  A transcript of that hearing has been associated with the record.

In May 2014, the Board remanded the matter on appeal to the agency of original jurisdiction (AOJ) for additional development.  After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board.


FINDING OF FACT

The appellant's auditory acuity is no worse than level IX in the right ear and level I in the left ear.


CONCLUSION OF LAW

The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the matter herein decided.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.103, 3.156(a), 3.159, 3.326; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); D'Aries v. Peake, 22 Vet. App. 97 (2008); Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Although invited to do so, the appellant did not provide any releases for outstanding medical records from additional sources, as the AOJ requested in response to the Board's May 2014 remand.  As such, the AOJ was unable to undertake any additional development of such records.  VA treatment records have been obtained for association with the record on appeal; the examination reports of record contain all of the information necessary to a proper evaluation of his disability; and the VA audiologist who most recently examined the appellant in September 2014 and April 2015 provided an interpretation and comparison of findings contained in a May 2013 report from a private audiologist, as requested in the remand.

A VA audiologist who examined the appellant in December 2010 referred to a VA audiogram from April 2010 (from testing performed in connection with a VA hearing aid assessment).  The audiometric data from April 2010 are not of record.  However, it appears clear from the December 2010 examination report that the April 2010 data are consistent with, or less favorable to the appellant than, the data obtained in December 2010, inasmuch as the examiner noted that, when comparing the two, testing in December 2010 demonstrated "no significant decrease in hearing" from April 2010.  Under the circumstances, obtaining the April 2010 audiogram would serve no useful purpose.  See, e.g., Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  No further notice or evidentiary development is required.

II.  The Merits of the Appeal

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

If 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.

Hearing loss is evaluated under Diagnostic Code 6100.  The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests.  See 38 C.F.R. § 4.85.  Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear.  These numeric designations are then charted on Table VII to determine the rating to be assigned.  Id.  See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule).

However, not all patterns of hearing loss are rated in this manner.  For example, where, as here, the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz).

In the present case, the record on appeal contains the results of six VA and private audiometric examinations that contain (or appear to possibly contain) the necessary puretone threshold and speech discrimination data necessary for a proper evaluation of the appellant's disability.  The reports are dated in September 2009 (VA), March 2010 (private), December 2010 (VA), May 2013 (private), September 2014 (VA), and April 2015 (VA).

On the earliest of the VA examinations, in September 2009, testing revealed the following results (using the Maryland CNC word list):

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
70
60
65
75
64
LEFT
10
15
65
75
96

The average of these thresholds is 67.5 decibels for the right ear and 41.25 decibels for the left ear.  Under 38 C.F.R. § 4.85 and Tables VI and VIa, these results correspond to level VII acuity for the right ear and level I acuity for the left ear; which, in turn, warrants a zero (0) percent rating under Table VII.

Private testing in March 2010 yielded the following results:

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
70
60
70
70
70
LEFT
10
20
65
75
100

The average of these thresholds is 67.5 decibels for the right ear and 42.5 decibels for the left ear.  It is unclear from the report whether the Maryland CNC word list was used to obtain the speech discrimination scores.  However, even assuming for purposes of argument that the Maryland CNC was used, under 38 C.F.R. § 4.85 and Tables VI and VIa, these results would correspond to no more than level VI acuity for the right ear and level I acuity for the left ear; which, in turn, warrants a zero (0) percent rating under Table VII.

On VA examination in December 2010, testing yielded the following results (using the Maryland CNC word list):

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
70
65
70
75
64
LEFT
15
20
70
80
96

The average of these thresholds is 64 decibels for the right ear and 46.25 decibels for the left ear.  Under 38 C.F.R. § 4.85 and Tables VI and VIa, these results correspond to level VII acuity for the right ear and level I acuity for the left ear; which, in turn, warrants a zero (0) percent rating under Table VII.

Private testing in May 2013 yielded the following results:

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
70
65
65
75
40
LEFT
20
25
65
80
100

The average of these thresholds is 68.75 decibels for the right ear and 47.5 decibels for the left ear.  As with the earlier private report, it is unclear from this report whether the Maryland CNC word list was used to obtain the speech discrimination scores.  However, even assuming for purposes of argument that the Maryland CNC was used, under 38 C.F.R. § 4.85 and Tables VI and VIa, these results would correspond to no more than level IX acuity for the right ear and level I acuity for the left ear; which, in turn, warrants a zero (0) percent rating under Table VII.

On VA examination in September 2014, testing yielded the following results (using the Maryland CNC word list):

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
70
70
75
75
60
LEFT
10
25
75
85
92

The average of these thresholds is 72.5 decibels for the right ear and 48.75 decibels for the left ear.  Under 38 C.F.R. § 4.85 and Tables VI and VIa, these results correspond to level VII acuity for the right ear and level I acuity for the left ear; which, in turn, warrants a zero (0) percent rating under Table VII.

Finally, on the most recent VA examination, in April 2015, the following results were obtained (using the Maryland CNC word list):

HERTZ

SPEECH (%)
1000
2000
3000
4000

RIGHT
70
70
70
75
56
LEFT
15
25
75
85
96

The average of these thresholds is 71.25 decibels for the right ear and 50 decibels for the left ear.  Under 38 C.F.R. § 4.85 and Tables VI and VIa, these results correspond to level VIII acuity for the right ear and level I acuity for the left ear; which, in turn, likewise warrants a zero (0) percent rating under Table VII.

Following review of the evidence, and the applicable law and regulations, it is the Board's conclusion that the preponderance of the evidence is against the appellant's claim for an initial compensable rating for bilateral hearing loss.  As set forth above, the September 2009, March 2010, December 2010, May 2013, September 2014, and April 2015 reports all demonstrate entitlement to nothing more than a zero (0) percent rating.

In arriving at this conclusion, the Board has specifically considered whether the appellant is entitled to a "staged rating."  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  It is the Board's conclusion, however, that none of the evidence demonstrates that his hearing disability has ever been more than zero (0) percent disabling since the time that he filed the underlying claim for service connection in September 2007.  None of the test results supports the assignment of a rating in excess of the currently assigned evaluation.  The preponderance of the evidence is against the assignment of a compensable rating under the Schedule, and a "staged rating" is not warranted.

To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability.  38 C.F.R. § 3.321(b)(1).  The criteria 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.  See Thun v. Peake, 22 Vet. App. 111 (2008).

The Board has considered whether the appellant's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted.  The appellant's reported symptoms, consisting of difficulty with auditory acuity and decreased speech discrimination, particularly in the presence of background noise, are fully contemplated by the schedular rating criteria, which provide higher evaluations for greater levels of impairment.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards.

The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), an appellant may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with his service-connected disabilities.  However, in this case, even after affording the appellant the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds no additional impairment that has not been attributed to a specific, rated disability.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the appellant for disability that can be attributed only to the combined effect of multiple conditions.

Finally, the Board notes that if the claimant or the record reasonably raises the question of whether the appellant is unemployable due to the disability for which a higher rating is sought, then part and parcel of that claim for a higher rating is the matter of whether a total disability rating based on individual unemployability due to service-connected disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Bradley v. Peake, 22 Vet. App. 280 (2008).    

In this case, the appellant has not alleged, and none of the evidence suggests, that he is unable to secure or follow a substantially gainful occupation as a result of bilateral hearing loss alone.  As such, there is no basis for further consideration of a higher rating under Rice and Bradley.


ORDER

An initial compensable rating for bilateral hearing loss is denied.



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

Department of Veterans Affairs