Citation Nr: 1757784 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-37 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and R.R. ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from October 1989 to October 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that granted service connection for bilateral hearing loss with a noncompensable evaluation from the date of service connection on May 13, 2009. The Veteran and R.R. testified before the undersigned Veterans Law Judge (VLJ) during a September 2016 Board hearing. A transcript of the hearing is associated with the electronic record. When this case was previously before the Board in March 2017, it was remanded for additional evidentiary development. It has since been returned for further appellate action. The issue of entitlement to service connection for tinnitus was raised by the record in the September 2016 hearing, but has not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue. This issue was referred to the AOJ for appropriate action in the March 2017 remand; however, it does not appear that the issue has been addressed by the AOJ. It is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). This claim has been processed using Virtual VA and the Veterans Benefits Management System (VBMS). The Board has reviewed the evidence contained in these online systems to ensure consideration of the totality of the evidence. FINDING OF FACT Throughout the initial rating period, the Veteran's hearing impairment has been no worse than Level II Roman numeral designation for the right ear and a Level III designation for the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met or approximated. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Initial disability rating issues are generally considered "downstream" elements of the service connection claim. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (interpreting that separate notification is not required for the "downstream" issue of initial rating); 38 C.F.R. § 3.159 (b) (3) (i) (2017) (reflecting that there is no duty to provide VCAA notice upon receipt of a notice of disagreement). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned VLJ in September 2016. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). This case was remanded in March 2017 to obtain any outstanding records pertinent to the Veteran's claim, to include the additional evidence referred to in the September 2016 hearing, and afford the Veteran a VA examination. In June 2017 the Veteran was afforded a VA examination, and he submitted new evidence subsequent to the remand. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. 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 puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone 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 puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows. (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) 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. (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Analysis In April 2009 the Veteran submitted a private audiogram with incomplete interpretations and without a controlled speech discrimination test (Maryland CNC). Therefore that examination is not sufficient for VA rating purposes. The Veteran submitted a private statement from a hearing aid specialist with Costco in May 2009 with graphical interpretations and without a controlled speech discrimination test (Maryland CNC). Therefore that examination is not sufficient for VA rating purposes. The Veteran later submitted an examination from Costco in October 2008 and Dr. B. in September 2010 with incomplete interpretations and without a controlled speech discrimination test (Maryland CNC). Therefore that examination is not sufficient for VA rating purposes. In response to his claim, the Veteran was afforded a VA audiological evaluation in September 2009. The Veteran reported hearing difficulty. On examination his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 25 30 40 45 35 LEFT 45 40 55 60 50 Speech recognition was 96 percent in the right ear and 96 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. Application of these designations to Table VII results in a 0 percent rating. The Board has considered whether a higher rating than 0 percent for bilateral hearing loss is warranted by applying the exceptional hearing pattern provisions of 38 C.F.R. § 4.86; however, the exceptional hearing pattern criteria are not met. The Veteran was afforded a VA audiological evaluation in September 2015. The Veteran reported difficulty hearing in the classroom and that he was "jumped" at his job in the juvenile justice system due to not being able to hear perpetrators. On examination his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 25 30 40 50 36 LEFT 40 40 65 50 50 Speech recognition was 96 percent in the right ear and 96 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I Roman numeral designation for the left ear. Application of these designations to Table VII results in a 0 percent rating. The Board has considered whether a higher rating than 0 percent for bilateral hearing loss is warranted by applying the exceptional hearing pattern provisions of 38 C.F.R. § 4.86; however, the exceptional hearing pattern criteria are not met. Pursuant to the Board's remand, the Veteran was afforded a VA audiological evaluation in June 2017; the audiologist reviewed the claims file. The Veteran reported functional loss of sleep and difficulty hearing certain tones with tinnitus; he would raise his voice unknowingly when he did not wear his hearing aids; and he worked in corrections with violent offenders and was required to wear VA issued hearing aids to improve sounds around him. On examination his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT 35 50 50 40 44 LEFT 45 65 60 60 58 Speech recognition was 88 in the right ear and was 86 percent in the left ear. Applying the values above to Table VI results in a Level II Roman numeral designation for the right ear and a Level III Roman numeral designation for the left ear. Application of these designations to Table VII results in a 0 percent rating. The Board has considered whether a higher rating than 0 percent for bilateral hearing loss is warranted by applying the exceptional hearing pattern provisions of 38 C.F.R. § 4.86; however, the exceptional hearing pattern criteria are not met. The Board notes that the Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In accordance with this decision, the Board finds that the VA examiners sufficiently noted the effects the Veteran's hearing impairment had on his activities, to include difficulty hearing, an inability to hear perpetrators at work, and unknowingly raising his voice when he did not wear his required hearing aids. The Board also notes that VA treatment records are replete for complaints of hearing loss and use of hearing aids. On review of the file, it is evident the criteria for an initial rating in excess of 0 percent under Diagnostic Code 6100 is not met. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA, his comments to the examiners, and his testimony before the undersigned in which he generally contends his disability should be rated higher than the current rating. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Whereas the Veteran's hearing loss has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for a higher initial rating. Consideration has been given to assigning a staged rating; however, at no during the period under review does the disability warrant a higher rating under the schedular criteria. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered the Veteran's statement regarding the difficulty hearing caused by his service-connected hearing loss and the impact the condition has on employment, as described above. The June 2017 VA examination report noted the Veteran reported functional loss of sleep with regard to both tinnitus and hearing loss. That report does not show that the Veteran reported any impairment resulting from the report loss of sleep and neither the Veteran nor his representative have asserted that there is any additional functional impairment due to hearing loss that is not contemplated by the rating criteria. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record in conjunction with his claim for increased compensation for a bilateral hearing loss disability. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Finally, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, there is no evidence that the Veteran is unable to gain or maintain substantially gainful employment due to his hearing loss disability. Thus, entitlement to TDIU has not been raised by the record. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs