Citation Nr: 1804044 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-24 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2004 to October 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2016 the Veteran presented testimony at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT The Veteran's hearing loss has been manifested by no worse than Level I hearing impairment in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, the Veteran was provided adequate notice in September 2012 when he completed the application for VA disability compensation by way of the VA's quick start initiative, prior to separating from active military service. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims file. VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary 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. Increased Rating - Bilateral Hearing Loss Ratings for hearing loss disability 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, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. In describing the evidence the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks an initial compensable rating for left ear hearing loss. By way of background a January 2013 rating decision granted a noncompensable rating for left ear hearing loss and assigned an effective date of October 12, 2012. The effective date is the date following service discharge. For the following reasons, the Board finds that the Veteran's left ear hearing loss symptoms most closely approximate a non-compensable evaluation under Diagnostic Code 6100, but no higher, since the award of service connection. See 38 C.F.R. § 3.385. Pertinent evidence associated with the claims file includes, service treatment records, VA examination reports dated in November 2012 and April 2015, and treatment records. Service treatment records include multiple audiometric evaluations dated in December 2004, March 2007, November 2009, and March 2012. Also, correspondence from the Commanding Officer, Naval Hospital, Camp Lejeune identifies the Veteran as having been evaluated and determined to have a decrease in hearing referred to as a permanent threshold shift. The November 2012 VA audiological examination revealed pure tone thresholds in the Veteran's left ear of 10, 5, 10, and 55 decibels, at 1000, 2000, 3000 and 4000 Hertz. The Maryland CNC speech recognition score was 96 percent in the left ear. Using Table VI, the Veteran's November 2012 VA examination results revealed Level I hearing in the left ear. Using Table VII, Roman numeral I is used for the non-service-connected right ear. Combining these levels according to Table VII results in a noncompensable rating. The resulting examination report indicates the Veteran's claims file was not available for review. The April 2015 VA audiological examination report notes the examiner reviewed the Veteran's claims file noting the Veteran's reported history of noise exposure in service related to combat, instructing weapons training and expose to RPG training; to include his participation in a hearing conservation program. The resulting examination revealed pure tone thresholds in the Veteran's left ear of 10, 5, 15, and 45 decibels, at 1000, 2000, 3000 and 4000 Hertz. The Maryland CNC speech recognition score was 88 percent in the left ear. Using Table VI, the Veteran's April 2015 VA examination results revealed Level I hearing in the left ear. Using Table VII, Roman numeral I is used for the non-service-connected right ear. Combining these levels according to Table VII results in a noncompensable rating. The examiner concluded that hearing loss impacted ordinary conditions of daily life, including the ability to work described the Veteran's reported difficulty of hearing people talk and the inability to determine a male versus a female voice over the phone. Post-service VA treatment records show the Veteran received some treatment for hearing loss however there are no audiometric testing results or documentation in the treatment records to support worsening symptoms that meet the criteria for a higher disability rating. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his left ear hearing loss condition. During the Board hearing the Veteran testified that he is a Professor at Penn State, Abington. He explained it is difficult to hear his students in class when they asked questions and also when responding to questions. Additionally, the Veteran's representative requested that another VA examination is afforded to allow the Veteran the opportunity to complete another speech recognition test. Specifically, the representative argued that when conducting the speech recognition test, the April 2015 VA-contracted examiner was not talking in a normal tone as required for an appropriate test. In this regard, the Veteran testified that during speech recognition testing he was unable to understand the examiner. He explained that the examiner would first recite a word in which he was to repeat. In so doing, he described the examiner's tone of voice and volume as not shouting, but perhaps higher than normal; above normal conversation, and as speaking "aloud." According to the Veteran, if he was not looking at the examiner he would not have been able to respond as he determined the word to repeat by reading the examiner's lips and "hearing something that was similar." He described reading the examiner's lips to determine what word she was saying as "trying to help her out." He explained that he should not have done so if he was unsure of the word but felt compelled to respond. He further explained that during the speech recognition test, at times, he did hear the words recited by the examiner but often did not. He admitted to telling the examiner he understood and also that he could hear the words she spoke. Further, he explained that although he heard the sound of the examiner's voice he did not actually understand the words. The Board has considered the Veteran's explanation as to why he believes the examination was inadequate. However, the examiner was a licensed audiologist and therefore familiar with hearing testing. Here, the Board assigns the April 2015 examiner's opinion significant probative weight because it was based on a full examination of the claims folder, fully addressed the Veteran's in-service symptoms and contentions, and was supported by examination testing results. The resulting examination report documents the examiner concluded that use of speech discrimination score of 88 percent recorded for the left ear is appropriate for the Veteran. The examination report does not suggest that the speech discrimination score is not appropriate for the Veteran due to any problems to include language difficulties, cognitive problems, or inconsistent speech discrimination scores that would make the combined use of puretone average and speech discrimination scores inappropriate. As discussed above, examinations were provided to ensure that the record reflects the current extent of the disability, and these findings are responsive to the pertinent rating criteria. Moreover, there are no other audiometric test scores reflecting that the Veteran has had hearing loss disability supporting a compensable rating. The Board acknowledges the Veteran is competent to report his symptoms and impairment caused by his hearing disability, as these are perceived by his own senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, establishing a current hearing loss disability requires audiometric testing meeting specific criteria pursuant to the applicable regulation, and the Veteran is therefore not competent to provide a medical determination of the severity of current left ear hearing loss disability. Hence, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. In assessing medical opinions, the November 2012 examination report indicates the examiner did not review the Veteran's claims file. In this case, the November 2012 and April 2015 examination reports are the most pertinent evidence of record. The April 2015 examiner did review the claims file, so the Board finds no need for further development based on the November 2012 lack of claims file review. In sum, the Veteran is not entitled to a compensable rating for his hearing loss. The Board in no way discounts the difficulties that the Veteran experiences as a result of his left ear hearing loss. It must be emphasized, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent VA audiology studies of record. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a disability rating higher than the initial noncompensable rating assigned for the Veteran's left ear hearing loss throughout the entirety of the rating period. Hart v. Mansfield, 21 Vet. App. 505 (2008). III. Extraschedular and TDIU Consideration The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. In this regard, the Board notes that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis. The Board finds that the Veteran's symptoms of left ear hearing loss, are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case The Board acknowledges the Veteran's reports that it is difficult to hear his students speak. However, neither the Veteran nor the record has raised the question of unemployability due to service-connected disability. Therefore, no further discussion of a TDIU is necessary. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs