Citation Nr: 1735554 Decision Date: 08/28/17 Archive Date: 09/06/17 DOCKET NO. 13-24 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970, including service in the Republic of Vietnam. His awards and decorations include the Purple Heart Medal and Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office Regional Office (RO) in Philadelphia, Pennsylvania, which, in relevant part, granted entitlement to service connection for bilateral hearing loss, and assigned a noncompensable disability rating, effective February 28, 2012. The Veteran testified at a hearing before the undersigned with respect to his claim for a compensable disability rating for bilateral hearing loss in May 2014. A hearing transcript is of record. In July 2014, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development. FINDING OF FACT The Veteran has had no more than level I hearing impairment in both ears during the entire appeal period. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.383, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in April 2012. VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The AOJ has obtained the Veteran's VA treatment records, and has afforded him audiological examinations, which together, are adequate for assessing the severity of his bilateral hearing loss during the appeal period. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The AOJ substantially complied with the Board's July 2014 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the claim to ensure that the Veteran was afforded a contemporaneous VA examination to adequately assess the current severity of his bilateral hearing loss. See id. There is no indication that additional evidence, to include any private treatment records, is available or required for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Higher Disability Rating Bilateral Hearing Loss A. Applicable Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran's entire history is to be considered when making disability evaluations. See, generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 26 (1999); A claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. B. Rating Criteria and Analysis Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak, 21 Vet. App. 447; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional hearing loss exists if there is 30 decibels or less of loss at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz.; or 55 decibels or more of loss at all relevant frequencies. 38 C.F.R. § 4.86. There is no evidence of an exceptional pattern of hearing loss in this appeal. The Veteran's hearing acuity was evaluated during a November 2011 VA audiological evaluation. The Board interprets the graphical representation of the audiometric testing results as follows, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 20 35 45 50 LEFT 20 35 45 55 The average pure tone threshold for these four frequencies was 37.5 decibels in the right ear and 38.75 decibels in the left ear. The evaluation report does not indicate that Maryland CNC speech recognition testing was performed. The Veteran indicated to the clinician that he had difficulty hearing when someone speaks in a whisper, and that he sometimes felt embarrassed when meeting new people or frustrated when talking to member of his family due to hearing impairment. The impairment also sometimes caused him difficulty when visiting with friends, relatives or neighbors, including when in restaurants, and when listening to the television or radio. The Veteran's hearing acuity was evaluated again during a May 2012 VA audiological examination. The results of audiometric testing were as follows, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 15 25 35 45 LEFT 15 25 35 55 The average pure tone threshold for these four frequencies was 30 decibels in the right ear and 32.5 decibels in the left ear. Maryland CNC speech recognition testing revealed a score of 98 percent for the right ear and 96 percent for the left ear. The examiner indicated that the Veteran's hearing loss did no impact his ordinary condition of daily life, including his ability to work. The Veteran's hearing acuity was most recently evaluated during a September 2014 VA contracted audiological examination. The results of audiometric testing were as follows, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 20 35 50 50 LEFT 25 35 50 60 The average pure tone threshold for these four frequencies was 38.75 decibels in the right ear and 42.5 decibels in the left ear. Maryland CNC speech recognition testing revealed a score of 96 percent for both ears. The Veteran reported that his hearing impairment caused difficulty understanding conversational speech, and created difficulty in the home. He additionally indicated that he had difficulty hearing in noisy environments, in group situations, and from a distance. Based on the results of audiometric testing conducted throughout the appeal period, the Veteran's hearing acuity warrants the assignment of no more than level I hearing loss for both ears throughout the appeal period. Even assuming that speech discrimination testing was not appropriate at the time of the November 2011 VA audiological evaluation, upon application of the audiometric testing results to Table VIa, the Veteran still had no more than level I hearing loss at that time. See 38 C.F.R. § 4.85(c). The assignment of level I hearing loss for the bilateral ears does not warrant a compensable rating when applied to Table VII. Accordingly, the Board finds that a compensable disability rating is not warranted for the Veteran's bilateral hearing loss. The Board has considered the Veteran's statements made during the VA audiological evaluations and examinations, and during his May 2014 Board hearing. He has indicated that his hearing impairment caused difficulty understanding conversational speech, including in groups and at restaurants, and among friends, neighbors, and relatives. His hearing impairment has also created difficulty hearing in the home, including hearing his wife call to him, hearing the television and radio, and hearing the telephone ring. As noted, however, the schedular rating is based on the mechanical application of the rating criteria to the test results. See Martinak, supra. While his competent statements have been taken into consideration, and while the Board is sympathetic to his concerns and difficulties as related to his hearing impairment, the described functional impact of his hearing loss does not alter the Board's rating assignment. C. Extraschedular Consideration and TDIU The Board also considered the question of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence here does not show that the Veteran's hearing loss presents an exceptional disability picture. Comparison between his symptoms and the rating criteria shows that the criteria reasonably describe his hearing disability level and symptomatology, and in fact provide for higher ratings for more severe levels of hearing loss, which are not shown in this case. The Veteran and his representative have not identified any symptoms not recognized by the rating criteria, or presented evidence showing how the rating criteria are inadequate. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran 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 service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. A claim for a total rating based on individual unemployability (TDIU) due to service-connected disability is a potential part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In the instant case, the Veteran has not asserted that his hearing disability has prevented him from employment. There is, in fact, no evidence of record to indicate that the Veteran's hearing impairment may have had any effect on his ability to secure or follow substantially gainful employment, other than causing him difficulty understanding conversation. He further testified that he was retired and he did not attest to any employment difficulties. Thus, consideration of a TDIU is not warranted. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against assigning a compensable disability rating for the Veteran's bilateral hearing loss. Hence, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. ____________________________________________ JAMES D. RIDGWAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs