Citation Nr: 1756954	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-13 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to an initial rating greater than 50 percent for bilateral hearing loss.


ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel


INTRODUCTION

The Veteran had verified active duty service from April 1945 to January 1946. 

This appeal to the Board of Veterans' Appeals (Board) arose from a March 2013 rating decision in which the RO granted service connection for bilateral hearing loss and assigned an initial 0 percent (noncompensable) rating.  In May 2013, the Veteran filed a notice of disagreement (NOD) with the assigned rating.  h 2013 rating decision.  In March 2014, the RO issued a statement of the case (SOC) addressing entitlement to an initial compensable rating for bilateral hearing loss.  In April 2014, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals).

Because this appeal involves disagreement with the initial rating assigned following the award of service connection for bilateral hearing loss, the Board has characterized the issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).

The Veteran also filed a notice of disagreement with respect to a September 2012 RO decision denying service connection for Meniere's disease and cataracts (claimed as a vision problem).  However, in his  April 2014 substantive appeal, the Veteran limited the issue under appellate consideration to an initial compensable rating for bilateral hearing loss; hence,  that is the only issue before the Board.  See 38 C.F.R. § 20.202 (2017). 

In February 2015, the Veteran was afforded a Board hearing before a Veterans Law Judge (VLJ).  A hearing transcript is of record.  

In April 2015, the Board remanded the claim on appeal for additional development. 

In July 2015, the agency of original jurisdiction (AOJ) granted an initial  50 percent rating for bilateral hearing loss from the  January 28, 2013 effective date of the award of service connection.  

In November 2017, VA notified the Veteran that the VLJ who conducted the February 2015 hearing (who has since left the Board) would not be available to decide his appeal, and he was offered the opportunity for another Board hearing.  The same month, he responded that he did not desire another hearing.   

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.  All records have been reviewed.

Also, this appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017).  

As a final preliminary matter, the Board notes that, in connection with the claim on appeal, the Veteran submitted a May 2016 private audiogram which has not been reviewed by the AOJ, and for which initial AOJ consideration has not been waived.  Nevertheless, because the Veteran filed his substantive appeal after February 2, 2013, and has not specifically requested AOJ review of this evidence, the Board may consider this evidence in the first instance.  See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America's Veterans Act), Public Law No. 112-154, 126 Stat. 1165 , which amends 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal, where the substantive appeal is filed on or after February 2, 2013 and unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim have been accomplished.

2.  Since the January 28, 2013 effective date of the award of service connection, audiometric testing has revealed no worse than Level VIII in the right ear and Level IX hearing in the left ear.

3.  The applicable schedular criteria are adequate to evaluate the Veteran's service-connected hearing loss at all pertinent points, and no claim of unemployability due to this disability has been raised.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 50 percent for bilateral hearing loss are not met.  38 U.S.C. §§ 1155, 5103, 5103A (West 2012); 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).

After a complete or substantially complete application for benefits is filed, the notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 (b)).

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to VA's assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

A February 2013 pre-rating letter provided pertinent notice to the Veteran in connection with what was then a claim for service connection for hearing loss.  That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA.  The letter provided general notice of how VA determines disability ratings and effective dates (in the event service connection was granted), as well as the type of evidence that impacts those determinations. 

After the March 2013 award of service connection for bilateral hearing loss, and the Veteran's disagreement with the initial rating assigned, no additional notice for the downstream, initial rating issue was required under 38 U.S.C. § 5103A.  See VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).   Nonetheless, the SOC set forth the criteria for higher ratings (which suffices, in part, for Dingess/Hartman).

The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matter herein decided.  Pertinent evidence associated with the claims file consists of the Veteran's statements, private treatment records, and the reports of VA examinations in March 2013 and May 2015 with a July 2015 addendum concerning functional impairment.  

The Board notes that the Veteran submitted a private May 2016 audiogram indicating that he could not respond during puretone audiometry testing.  This is the same result found in the March 2013 VA examination report.  The record shows that the Veteran has additional difficulties, including language barriers, dizziness, among others, that make it difficult for him to complete puretone audiometry testing.  See VA examination reports from March 2013 and May 2015.  The Veteran has not otherwise directly asserted that his hearing loss has materially worsened since May 2015.  Accordingly, an additional VA audiology examination is not needed.  

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained.  Also of record and considered in connection with the claim is the transcript of the Board hearing, along with various written statements provided by the Veteran.  The Board finds that no further action, prior to appellate consideration, is required.

As for the February 2015 Board hearing, the Veteran appeared and provided testimony concerning the nature and extent of his hearing loss.  At that time, the VLJ identified the issue on appeal and information was elicited regarding the nature and severity of, and treatment for, this disability.  Although the VLJ did not explicitly suggest the submission of any specific, additional evidence, on these facts, such omission was harmless, inasmuch as following the hearing, the claim was remanded for development, and additional evidence was subsequently added to the file.  Thus, the hearing was legally sufficient.  See 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

Also, as indicated above, the Board is satisfied that, with respect to this claim, the actions previously requested on remand have been accomplished, to the extent possible, and that no further action in this regard is required.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 1999 (holding that substantial compliance, rather than strict compliance, is required).  The Board further finds that the evidence of record, to include the May 2015 VA audiology report and July 2015 addendum obtained on remand, along with other evidence, is adequate to resolve the claim.

In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection the claim.  As such, there is no prejudice to the Board proceeding to decision on the claim on appeal, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Higher Rating

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation.  Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.

Hearing tests are to be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a). 

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, as here, the question for consideration is entitlement to a higher initial rating assigned following a grant of service connection, evaluation of the medical evidence since the effective date of the award and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson, 12 Vet. App. at 126.

On March 2013 VA examination, the examiner reported that he could not test any frequency, except 1000 Hz, in each ear.  He stated that the Veteran did not respond when tested at the maximum test tone (120db) at different frequencies.  He noted that the Veteran complained of dizziness.  The examiner stated that the test results were not valid for rating purposes.  He reported that the Veteran's inability to respond was attributable to poor comprehension of test instructions and dizziness.  He also reported that use of the speech discrimination score was not appropriate because of language difficulties, cognitive problems, inconsistent speech discrimination scores, among others that made combined use of puretone average and speech discrimination scores inappropriate.  The examiner diagnosed bilateral sensorineural hearing loss. 

In April and July 2013, the Veteran asserted that a compensable rating was warranted.  He reported that his hearing loss was worse than the hearing loss of a friend who had a compensable rating for service-connected hearing loss. 
	
March 2014 private medical records from Dr. R. showed a diagnosis of decreased hearing acuity.  He reported that the Veteran could not respond in either ear for puretone audiometry testing.  

In April 2014, the Veteran reported that his hearing loss had worsened since the March 2013 VA examination.  

At the February 2015 hearing, the Veteran's wife reported that she had to speak very loudly to the Veteran and that their neighbors would overhear their conversations.   

In May 2015, the Veteran was afforded another VA hearing loss examination.  On audiometric testing,  pure tone thresholds, in decibels, were as follows:



HERTZ




1000
2000
3000
4000
Average
RIGHT
75
85
90
100
88
LEFT
85
80
95
105+
91

Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 0 percent in the left ear.  The examiner stated that use of the word recognition score is not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, among others, that make combined use of puretone average and word recognition scores inappropriate.   The examiner diagnosed bilateral sensorineural hearing loss.  

Applying the method for evaluating hearing loss to the results of the Veteran's testing during audiological evaluations reveals Level VIII hearing in the right ear and Level IX hearing in the left ear according to Table VIA.  See 38 C.F.R. § 4.86.
Combining Level VIII hearing for the right ear and Level IX hearing for the left ear according to Table VII reveals 50 percent disability rating.  38 C.F.R. § 4.85, Diagnostic Code 6100.  Although the results reveal an exceptional pattern of hearing loss in each ear, there is not a valid speech discrimination score to consider Table VI.  38 C.F.R. § 4.86.

In a July 2015 addendum, the examiner reviewed the claims file  and provided comment as to the  functional impairment from the Veteran's service-connected hearing loss.  He stated that the Veteran had bilateral moderately severe to profound hearing loss.  Without hearing aids, he opined that the Veteran would have difficulty understanding spoken words and phrases in a noisy environment.  He would have difficulty with understanding specific verbal instructions, hearing telephone conversations and hearing television programs.  He stated that the Veteran's inner ear function is limited and required special attention for feasible communication.  

In May 2016, the Veteran submitted an audiological evaluation report from Dr. R.  He reported conducting a pure tone audiometry evaluation.  However, the Veteran could not respond for either ear when tested.  

In view of the above, the Board finds that the Veteran is entitled to no more than the initial 50 percent rating assigned throughout the period under consideration in this appeal..

In evaluating the disability under consideration, the Board has considered the Veteran's assertions as to the severity of his bilateral ear hearing loss.  The Board in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral ear hearing loss should be rated higher.  However, it must be emphasized that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345, 349   (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The above determinations are based upon consideration of applicable provisions of VA's rating schedule.  Additionally, the Board finds that at no point since the effective date of the award of service connection has the Veteran's bilateral hearing loss been shown to be so exceptional or unusual as to render the schedular criteria for evaluating hearing loss inadequate, and to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); see also 38 C.F.R. § 3.321 (b)(1).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996); see also Thun, supra.

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  See 38 C.F.R. § 3.321 (b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  See Thun, supra.

The Board notes the July 2015 VA addendum opinion specifically described the functional effects of the Veteran's service-connected bilateral hearing loss.  The symptom identified as associated with the Veteran's service-connected disability is hearing loss.  The July 2015 VA examiner reported the following hearing difficulties: speech in the context of a noise environment, verbal instructions, phone conversations, and television programs.  He stated that the Veteran would have to actively concentrate in order to communicate.  However, these are symptoms specifically contemplated by the appropriate rating criteria for hearing loss discussed above.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech or hearing other sounds in various contexts).  Hence, the criteria for rating hearing loss under DC 6100 encompasses the functional effects of the Veteran's hearing loss, to include those described by the Veteran.  Therefore, the rating assigned for the service-connected bilateral hearing loss during the period under consideration contemplates all of the Veteran's symptoms, as explained above, and there is no evidence or allegation of  any symptomatology that falls outside the scope of the applicable criteria. 

The Board further notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362   (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disability experienced.  Here, however, the Veteran's bilateral hearing loss is appropriately rated as a single disability.   He has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016).  Accordingly, this is not an exceptional circumstance for extra-schedular consideration within the meaning of Johnson.

As a final point, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, however, there is no evidence or allegation that the Veteran's bilateral hearing loss has actually or effectively rendered him unemployable at any pertinent point.  Under these circumstances, the Board finds that a claim for a TDIU due to service-connected bilateral hearing loss has not been raised as a component of the current claim for higher rating, and need not be addressed herein.

For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's bilateral hearing loss, pursuant to Fenderson, and the claim for a rating in excess of 50 percent for bilateral hearing loss must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical nature of deriving schedular ratings for hearing loss, and the above-noted determinations with respect to extra-schedular consideration, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinskit, 1 Vet. App. 49.  53-56 (1990)..


ORDER

An initial rating in excess of 50 percent for bilateral hearing loss is denied.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs