Citation Nr: 1753720 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-37 378A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to April 23, 2015. 2. Entitlement to a rating in excess of 20 percent from April 23, 2015. ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (hereinafter Agency of Original Jurisdiction (AOJ)). In the January 2009 decision, the AOJ assigned a noncompensable disability rating, effective August 1, 2005, for bilateral hearing loss. In April 2015, the AOJ assigned a rating of 20 percent, effective April 23, 2015. In February 2016, the Board remanded the appeal for further development. The case has now returned to the Board for further appellate review. FINDINGS OF FACT 1. From August 1, 2005 through April 23, 2015, a bilateral hearing loss disability had been manifested by, at worst, Level IV, in the right ear, and Level II, in the left ear. 2. From April 23, 2015, a bilateral hearing loss disability has been manifested by, at worst, Level IV, in the right ear, and Level VI, in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation from August 1, 2005 through April 23, 2015, for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.85, 4.86 (2017). 2. The criteria for an evaluation in excess of 20 percent from April 23, 2015, for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.14, 4.85, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). As indicated in the INTRODUCTION above, the claim for a higher rating arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice nor is there prejudice from the absence of VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claims on appeal. Specifically, VA has obtained updated private treatment records from Dr. D/Ear, Nose & Throat & Facial Plastic Surgery Center of Fredericksburg, PC. VA also contacted Dr. D and the U.S. Naval Research Laboratory, Walter Reed, on multiple occasions, in order to determine whether any data was obtained using the Maryland CNC test or another standard. No response was provided from either facility. In addition, in August 2016, the Veteran was provided with a letter and appropriate authorization forms, describing private medical records the Veteran could obtain and submit. As such, there has been substantial compliance with the February 2016 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was also afforded multiple medical examinations relating to his claim, most recently in April 2015. The reports from these examinations indicate that the examiners reviewed the Veteran's medical history, performed thorough in-person examinations, and offered assessments of the severity of his hearing loss based on findings and medical principles. The most recent April 2015 audiology examination was conducted by a state-licensed audiologist, and included both a controlled speech discrimination test using the Maryland CNC world list, and a pure tone audiometry test, in accordance with VA regulations pertaining to the evaluation of hearing impairment. See 38 C.F.R. § 4.85. The VA examiner also specifically requested the Veteran to identify the effects his service-connected bilateral hearing loss disability has on his occupational functioning and activities of daily living. See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007); 38 C.F.R. § 4.10. The Board recognizes VA's duty to obtain updated clinical information when the available evidence indicates a worsening of the disability. A review of the objective evidence reflects no credible lay or medical evidence of worsening since the most recent April 2015 examination. As such, the Board finds that the examinations of record, considered collectively, are adequate for ratings purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to these claims. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Ratings and Extraschedular Law and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The 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). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent, based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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 pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on pure tone threshold testing. An exceptional pattern of hearing impairment occurs when the pure tone thresholds in each of the four frequencies: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater or when the pure tone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). February 2006 private audiological records revealed puretone averages of 47 decibels for the right ear and 40 decibels for the left ear. Speech recognition threshold scores were 45 for both ears, and word discrimination scores were 88 percent for the right ear and 76 percent for the left ear. There was no indication that the Maryland CNC word list was used. According to Table VIA, found in 38 C.F.R. § 4.85, which is applicable when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral II, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral I. A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row I, the better ear, with column II, the poorer ear. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. An August 2006 VA examination revealed the following pure tone thresholds (in decibels): HERTZ 1000 2000 3000 4000 RIGHT 30 40 40 50 LEFT 30 40 45 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 96 percent in the left ear. The audiologist found that the Veteran had moderately impaired hearing in the right ear and moderate-severely impaired hearing in the left ear. Speech recognition was normal bilaterally. According to Table VI, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average and speech discrimination was found to be Roman numeral I, for the right ear. This was derived by intersecting the percent of speech discrimination row (96 percent, in this case) with the pure tone threshold average column (40, in this case). For the left ear, the designation was found to be Roman numeral I, derived by intersecting the percent of speech discrimination row (96 percent, in this case) with the pure tone threshold average column (44, in this case). A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row I, with column I. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. A February 2009 private audiological assessment revealed puretone averages of 52 decibels in the right ear and 47 decibels in the left ear. Speech reception threshold scores were 55 for the right ear and 47 for the left ear. Phonetically balanced word discrimination was 88 percent for the right ear and 76 percent for the left ear. There was no indication that the Maryland CNC word list was used. According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral III, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral II. A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row II, the better ear, with column III, the poorer ear. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. In a March 2009 letter, the Veteran's private physician Dr. D., indicated that the Veteran had moderate to severe sensorineural hearing loss. He reported that the Veteran had a puretone average of 52 decibels in the right ear and 47 decibels in the left ear. He had a speech discrimination score of 88 percent in the right ear and 76 percent in the left ear. In a March 2009 statement, the Veteran reported that he had difficulty hearing people seated next to him during meetings, or when people spoke in low voices. In a September 2009 Hearing Conservation Data form, the Veteran's audiogram revealed the following puretone thresholds (in decibels): HERTZ 1000 2000 3000 4000 RIGHT 45 50 60 60 LEFT 45 55 65 75 Word recognition scores were not noted. According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral III, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral IV. A 10 percent evaluation was derived from application of Table VIA in 38 C.F.R. § 4.85, by intersecting row III, the better ear, with column IV, the poorer ear. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. The form also contained data from a reference audiogram from March 2008, which revealed the following puretone thresholds (in decibels): HERTZ 1000 2000 3000 4000 RIGHT 45 50 60 60 LEFT 40 55 65 75 Word recognition scores were not noted. According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral III, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral V. If Table VIA was applicable, a 10 percent evaluation would be derived by intersecting row III, the better ear, with column V, the poorer ear. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. In his October 2009 Form 9, the Veteran reported that he had a difficult time understanding people on the job and hearing softer female voices. The Veteran also reported that his hearing loss was affecting his marriage. An August 2012 VA examination revealed the following puretone thresholds (in decibels): HERTZ 1000 2000 3000 4000 RIGHT 45 45 55 65 LEFT 45 5 60 75 Speech audiometry revealed speech recognition scores of 80 percent in the right ear and 84 percent in the left ear. Acoustic immittance, ipsilateral acoustic reflexes, and contralateral acoustic reflexes were normal for both ears. The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz and in the frequency of 6000 Hz or higher. The examiner also noted that the Veteran's hearing loss did impact his ordinary conditions of daily life, including his ability to work, because the Veteran had difficulty understanding speech. According to Table VI, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average and speech discrimination was found to be Roman numeral IV, for the right ear. This was derived by intersecting the percent of speech discrimination row (80 percent, in this case) with the pure tone threshold average column (52, in this case). For the left ear, the designation was found to be Roman numeral II, derived by intersecting the percent of speech discrimination row (84 percent, in this case) with the pure tone threshold average column (46, in this case). A 0 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row II, with column IV. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. A January 2013 clinical record noted that the Veteran had moderate to severe sensorineural hearing loss bilaterally, and that there were no significant threshold shifts compared to his March 2008 examination. The Veteran reported having vertigo, but the examiner did not suspect his vertigo to be ear related. The record revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 50 55 65 65 LEFT 40 55 65 75 According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral IV, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral IV. A 10 percent evaluation was derived from application of Table VIA in 38 C.F.R. § 4.85, by intersecting row IV with column IV. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. An April 2015 VA examination revealed the following puretone thresholds (in decibels): HERTZ 1000 2000 3000 4000 RIGHT 55 65 65 75 LEFT 55 65 75 80 Speech audiometry revealed a speech recognition score of 80 percent for the right ear, and 72 percent for the left ear. The Veteran exhibited normal acoustic immitance bilaterally, and abnormal ipsilateral and contralateral acoustic reflexes. The examiner also found that the Veteran's hearing loss impacted his ordinary conditions of daily life. He had difficulty hearing in all communication settings, and was an experienced user of hearing aids, which were helpful. According to Table VI, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average and speech discrimination was found to be Roman numeral IV, for the right ear. This was derived by intersecting the percent of speech discrimination row (80 percent, in this case) with the pure tone threshold average column (65, in this case). For the left ear, the designation was found to be Roman numeral VI, derived by intersecting the percent of speech discrimination row (72 percent, in this case) with the pure tone threshold average column (69, in this case). A 20 percent evaluation was derived from application of Table VII in 38 C.F.R. § 4.85, by intersecting row IV, with column VI. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. Private audiology records from December 2015 revealed puretone averages of 57 decibels. Speech audiometry revealed recognition scores of 55 percent for both ears, with an 84 percent discrimination loss in the right ear and 80 percent discrimination loss in the left ear. There was no indication that the Maryland CNC word list was used. The Veteran reported having dizziness and hearing loss for 10 years, but the examiner noted that his dizziness was not associated with hearing loss. The Veteran also reported increasing tinnitus, aural fullness, and vertigo. According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral IV, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral IV. A 10 percent evaluation was derived from application of Table VIA in 38 C.F.R. § 4.85, by intersecting row IV with column IV. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. Private audiology records from August 2017 revealed puretone averages of 65 decibels in the right ear, and 62 decibels in the left ear. Speech audiometry revealed recognition scores of 65 for both ears, with a 76 percent discrimination loss in the right ear and 60 percent discrimination loss in the left ear. Use of the Maryland CNC word list as a standard was not noted. According to Table VIA, found in 38 C.F.R. § 4.85, the numeric designation of hearing impairment based on pure tone threshold average was found to be Roman numeral V, for the right ear. This was found by matching the puretone average value with the designated Roman numeral. For the left ear, the designation was found to be Roman numeral IV. A 10 percent evaluation was derived from application of Table VIA in 38 C.F.R. § 4.85, by intersecting row IV with column V. These results did not show an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an initial compensable rating for bilateral hearing loss prior to April 23, 2015. Audiology examinations prior to April 23, 2015, revealed results which did not meet the criteria for a compensable rating. See Lendenmann, 3 Vet. App. 345 (1992) (assignment 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 rendered). Similarly, the Veteran is also not entitled to a rating in excess of 20 percent from April 23, 2015, as results from the April 23, 2015 audiology exam, did not meet the criteria for a rating in excess of 20 percent. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings and word recognition testing. As such, based on this mechanical application of the ratings schedule to the numeric designations derived from the audiometric evaluations, there is no basis for any increase in evaluation for hearing impairment in excess of 20 percent. See Lendenmann, 3 Vet. App. 345 (1992). In so holding, the Board acknowledges the Veteran's statement that his hearing loss is more severe than evaluated, and has worsened during the course of the appeal period. The Veteran has submitted numerous private audiology records which provide probative evidence in support of the claim. However, VA has been unsuccessful with several attempts to ascertain whether the private examiner used the Maryland CNC word list - which is necessary for application of VA's rating criteria for consistency purposes. The Board is bound to apply this regulatory rating requirement in determining an appropriate disability rating. As such, application of table VI under 38 C.F.R. § 4.85 would not be appropriate (which if applicable would meet the criteria for a 10 percent rating in 2013) as there is no certification that use of the speech discrimination test is not appropriate. See 38 C.F.R. §4.85. As such, a 10 percent rating could not be assigned solely on the private audiometric results. Furthermore, these private audiology records reflect results which are not compatible with VA findings. For example, the results from the December 2015 and August 2017 private audiology records show that the Veteran's hearing impairment would warrant a 10 percent rating, even though the earlier April 2015 VA examination found that the Veteran's hearing impairment met the criteria for a 20 percent rating. The Board clearly would not apply the private audiology reports to reduce his compensation rating. Thus, the private audiology records are not as probative as the results obtained from the VA examinations, and cannot be relied upon to adequately asses the severity of the Veteran's hearing impairment. The Board further observes that the private audiology examination reports, while incompatible with VA criteria, still have probative value by showing whether these results have a tendency to prove that the increased severity measured on VA examination in April 2015 was present prior to that date. The results from the 2013 private audiometric results, even if interpreted under Table VIA for these purposes, does not allow for a finding that it is factually ascertainable that the Veteran's decreased hearing acuity at the 20 percent level found on VA examination in April 2015 was present in 2013. With regard to the Veteran's own statements that his hearing impairment warrants a higher rating, the Board notes that the rating criteria require very specific measurable results from audiometric and word testing to provide for certain schedular ratings. Even when applying the benefit of the doubt rule, the Board finds that the Veteran's descriptions are insufficiently specific to factually ascertain that the level of hearing acuity shown on April 23, 2015, had been present for an earlier time period. The Veteran did report difficulties with hearing others, and symptoms of vertigo and dizziness, however in January 2013 and December 2015 private clinical records, the examiners found that those symptoms were not related to the Veteran's hearing loss. Similarly, the Veteran's claims for peripheral vestibular disorder and Meniere's disease secondary to service-connected bilateral hearing loss and tinnitus were denied. The Board notes that while the Veteran is competent to report symptoms such as an inability to understand speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable or higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he is not shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). His functional impairments are contemplated in the assigned schedular ratings. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In sum, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran's bilateral hearing loss disability warrants a higher prior to April 23, 2015, or from that date. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial compensable evaluation prior to April 23, 2015, for bilateral hearing loss, is denied. Entitlement to an increased evaluation in excess of 20 percent from April 23, 2015, for bilateral hearing loss, is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs