Citation Nr: 1754884 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-18 681A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This appeal arises to the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran filed a notice of disagreement in March 2013, contesting the noncompensable rating assigned for the bilateral hearing loss. The RO furnished the Veteran a statement of the case in June 2013. The Veteran filed a substantive appeal (VA Form 9) in September 2014. The Veteran was provided with a travel Board hearing in July 2015. A transcript of that hearing is of record. In March 2016, the Board remanded this case for further development. In a May 2016 rating decision, the RO increased the rating for bilateral hearing loss from noncompensable to 10 percent disabling, effective August 26, 2011. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDING OF FACT The Veteran's service-connected hearing loss of the right ear has been manifested by no more than auditory acuity Level VII and hearing loss of the left ear has been manifested by no more than auditory acuity Level II. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 1160(a)(3), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 3.383(a)(3), 4.1, 4.2, 4.7, 4.21, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. VA's duty to notify was satisfied by a letter sent in September 2011, prior to the initial rating decision. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Also, it is well to observe that once service connection is granted, the claim is substantiated and further notice as to the "downstream" elements concerning the initial ratings and effective dates is not required. See Dingess v. Nicholson, 19 Vet. App. 273, 490-491 ((2006); see also Hartman v. Nicholson, 438 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and relevant post-service treatment records and providing an examination when necessary. 38 U.S.C.A §5103A (West 2014); 38 C.F.R. §3.159 (2016). Here, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. The Veteran has been medically evaluated in conjunction with his claim. All identified and available treatment records have been secured. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Rules and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. §1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). However, where the question for consideration is the propriety of the initial rating assigned after the grant of service connection, an evaluation of the record evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" are required. See Fenderson v. West, 12 Vet. App. 119,126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Thus, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102, 4.3. The Board has considered the entire record, including the Veteran's VA clinical records. These show complaints and recommendations for treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Factual Background The Veteran was granted service connection for bilateral hearing loss with a noncompensable rating in a June 2010 rating decision. In a May 2016 rating decision, the RO increased the rating to 10 percent disabling for the Veteran's bilateral hearing loss. The Veteran was provided with a VA audiological examination in February 2012 which produced the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 45 55 50 90 105+ Left Ear 35 40 35 55 60 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 75 Left Ear 48 Speech Recognition Right Ear 86% Left Ear 98% The February 2012 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner noted that the Veteran's hearing loss does not impact the ordinary conditions of daily life, including the ability to work. The Veteran was provided with an audiological examination in June 2012 which produced the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 40 55 55 80 110 Left Ear 30 45 35 55 55 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 75 Left Ear 47.5 Speech Recognition Right Ear 94% Left Ear 100% The June 2012 examiner noted that the functional impact of the Veteran's hearing loss is that he cannot hear normal business office conversation or conference room discussions. He also cannot fully hear everyday family social interaction and communication. The Veteran was provided with another VA audiological examination in November 2014 which produced the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 55 60 60 85 95 Left Ear 40 45 35 55 60 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 75 Left Ear 49 Speech Recognition Right Ear 72% Left Ear 86% The November 2014 VA examiner noted that the functional impact of the Veteran's hearing loss is that he reports he has difficulty hearing everywhere. The Veteran was provided with an audiological examination in September 2015 which produced the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 50 60 60 85 105 Left Ear 40 50 55 70 70 Puretone Threshold Average of 1000 Hz - 4000 Hz Right Ear 77.5 Left Ear 61.25 Speech Recognition Right Ear 88% Left Ear 98% The September 2015 examiner noted that the functional impact of the Veteran's hearing loss is that he finds it difficult to understand speech when there are competing noises, if he does not see the speaker's face or is close to the speaking source, the lighting is not good, or if he is at a distance. The Veteran reported that he had to take an early retirement. The Veteran underwent private audiology examinations in July 2013, September 2014, and May 2016. The Board notes, however, that in order for an audiometry examination to be valid for rating purposes, it must conform to the requirements of 38 C.F.R. § 3.385. In relevant part, this regulation requires that the Maryland CNC be used to assess the Veteran's speech discrimination ability. The private examination reports of record do not reflect that such testing was used. Therefore, the Board cannot use the results of the July 2013, September 2014, and May 2016 audiometry examinations to evaluate the severity of the Veteran's bilateral hearing loss. In so finding, the Board acknowledges that when VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). The Court's holding is limited to those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report. Id. Here, unlike in the Savage case, there is sufficient contemporaneous evidence of record to evaluate the disability during the relevant period. The Veteran was examined by the VA in February 2012, June 2012, November 2014, and September 2015. Analysis Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Here, the Veteran's hearing loss in the right ear only meets this standard. The Board notes that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The VA reports of record, as a whole, reflect the Veteran's own report of the functional impact of his hearing loss. These notations indicate that the examiners did elicit information from the Veteran concerning the functional effects of his disability as required by 38 C.F.R. § 4.1, 4.2, 4.10. Objective testing from the February 2012 VA examination shows that the pure tone threshold average was 75 in the right ear and 48 in the left ear. Speech audiometry was 86 percent in the right ear and 98 percent in the left ear. Under table VI and VII, an auditory acuity of Level III in the right ear and Level I in the left ear meets the criteria for a 0 percent rating. Objective testing from the June 2012 audiological examination shows that the pure tone threshold average was 75 in the right ear and 47.5 in the left ear. Speech audiometry was 94 percent in the right ear and 100 percent in the left ear. Under table VI and VII, an auditory acuity of Level II in the right ear and Level I in the left ear meets the criteria for a 0 percent rating. Under table VIA for the right ear, table VI for the left ear, and table VII, an auditory acuity level of VI in the right ear and II in the left ear meets the criteria for a 10 percent rating. Objective testing from the November 2014 VA examination shows that the pure tone threshold average was 75 in the right ear and 49 in the left ear. Speech audiometry was 72 percent in the right ear and 86 percent in the left ear. Under table VI and VII, an auditory acuity of Level VI in the right ear and Level II in the left ear meets the criteria for a 10 percent rating. Under table VIA for the right ear, table VI for the left ear, and table VII, an auditory acuity level of VI in the right ear and II in the left ear meets the criteria for a 10 percent rating. Objective testing from the September 2015 audiological examination shows that the pure tone threshold average was 77.5 in the right ear and 61.25 in the left ear. Speech audiometry was 88 percent in the right ear and 98 percent in the left ear. Under table VI and VII, an auditory acuity of Level III in the right ear and Level II in the left ear meets the criteria for a 0 percent rating. Under table VIA for the right ear, table VI for the left ear, and table VII, an auditory acuity level of VII in the right ear and II in the left ear meets the criteria for a 10 percent rating. The Board has considered the Veteran's arguments that the VA audiological examinations did not include the effects of his disability upon activity. The Veteran cites to lay statements submitted by coworkers and family regarding his hearing loss and the impact it has on his job and daily activities. However, after having carefully reviewed the examinations noted above, the Board finds that the examination reports are adequate for rating purposes. Each examination report listed above included the functional impact of the Veteran's hearing loss disability upon his ordinary conditions of daily life, including the ability to work. Crucially, the schedular criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech, including the need to ask others to repeat themselves, difficulty hearing the television or needing to turn up the volume, difficulty hearing in the presence of background noise or with more than one person speaking or other than in a sound-controlled booth, difficulty locating sounds, difficulty using the telephone, difficulty hearing women's voices, needing to speak loudly to others, and posing a safety risk at work. Accordingly, the Board finds that the requirements for a disability rating in excess of 10 percent for bilateral hearing loss are not met based on the demonstrated levels of hearing impairment. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs