Citation Nr: 1804680 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-28 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1970 and was awarded a Vietnam Campaign Medal and Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which, in pertinent part, granted the Veteran's claim for bilateral hearing loss and evaluated it as noncompensably disabling. In June 2012, the Veteran filed his notice of disagreement (NOD) regarding the disability rating assigned for his hearing loss, and was provided a Statement of the Case (SOC) with respect to this issue in April 2013. He perfected his appeal of this decision in May 2013. In December 2015, the Board remanded the claim for a Travel Board hearing before a Veterans Law Judge which was subsequently held at the Philadelphia RO in October 2016 before the undersigned. A copy of the hearing transcript is of record. In March 2016, the Veteran was informed that his appointed representative was no longer accredited to represent claimants in claims before VA and that his appeal would proceed unless VA is otherwise notified. In the August 2017 decision, the Board denied the Veteran's claim seeking service connection for dermatitis and remanded the remaining claim for an initial compensable rating for bilateral hearing loss for additional evidentiary development. The claims file has since been returned to the Board. FINDING OF FACT Throughout the appeal period, the Veteran has manifested no worse than Level I hearing acuity in the right ear, and Level III hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for the Veteran's bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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, VA provided adequate notice in a letter sent to the Veteran in January 2012. 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.A. § 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 have been associated with the claims file. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A (c); 38 C.F.R. § 3.159 (c)(1)-(3). VA afforded the Veteran audiological examinations in January 2012, January 2013 and July 2014. Here, the Board finds that the VA examinations obtained in this case are adequate, as they were predicated on an audiological evaluation of the Veteran, as well as the Veteran's reported history and symptomatology. The examiners considered all of the pertinent evidence of record, to include statements given by the Veteran at the time of the VA examinations, and provided the findings necessary to apply pertinent rating criteria. The Board finds that the medical examination reports and opinions, along with the VA and private treatment records, are adequate for purposes of rendering a decision in the instant appeal. 38 C.F.R. §4.2 (2017). In the August 2017 Board decision, the AOJ remanded this claim for a more recent VA examination that addressed the current extent and severity of his hearing loss. The Veteran was scheduled for a VA audiological evaluation in October 2017 but he failed to report to this examination. Pursuant to 38 C.F.R. § 3.655, when a Veteran fails to report for a VA examination or re-examination that is scheduled in conjunction with an original claim, and he fails to provide good cause for this failure to report, the claim shall be rated based on the evidence of record, and as such, could result in denial of the claim. See 38 C.F.R. § 3.655 (b). Moreover, the Board notes that examples of "good cause" for failure to report for a VA examination include illness or hospitalization of the claimant and death of an immediate family member. See 38 C.F.R. § 3.655 (a). A more detailed review of the claims file reflects that a request for a VA examination in connection to the Veteran's hearing loss was initiated in August 2017. See August 2017 Compensation and Pension (C & P) Examination Inquiry report. In the General Remarks section, it was noted that the Veteran's address and phone number provided by the Veterans Benefits Administration (VBA) differed from the Veterans Health Administration's (VHA's) database. The Board notes that while the Veteran's residence has been located in Coatesville, Pennsylvania throughout his appeal, his street address appears to has changed several times during the pendency of the appeal, and in a March 2016 Report of General Information slip, the Veteran confirmed his most recent address of record. The August 2017 C & P Examination Inquiry Report listed the Veteran's most recent address of record (as confirmed by him in March 2016), and the AOJ was instructed to verify the address for accuracy before mailing the exam notification letter. A C&P note printed in October 2017 documents that the Veteran cancelled his appointment and has not responded to attempts to reschedule. The record reflects that the Veteran was scheduled for, and failed to report to his examination in October 2017. He did not provide any explanation for his failure to attend his examination. In the October 2017 Supplemental Statement of the Case (SSOC), which was addressed to the Veteran's most recent address of record (as confirmed by the Veteran), the AOJ readjudicated and denied the claim for an initial compensable rating for his bilateral hearing loss. The AOJ further noted that they had received notification from the VA Medical Center (VAMC) in Coatesville, Pennsylvania that the Veteran did not report for his scheduled VA examination in August 2017, and good cause for his failure to report had not been provided. It was further noted that evidence expected from this examination, which might have been material to the outcome of this claim, could not be considered. The SSOC also notified the Veteran of the rules and regulations underlying 38 C.F.R § 3.655. Notably, the SSOC indicated that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Even though the October 2017 SSOC was addressed to the most recent address of record as provided by the Veteran, it was returned as undeliverable. Subsequent correspondence dated in November 2017 and addressed to another mailing address that was possibly associated with the Veteran, and also located in Coatesville, Pennsylvania, informed the Veteran that previous correspondence mailed to him had been returned to the VA by the U.S. Postal Service as undeliverable. The Veteran was informed that if he did receive the November 2017 letter, he should contact the VA at the phone number provided to ensure they had his correct contact information. While the November 2017 letter was not returned as undeliverable, the Veteran has not contacted the VA to either confirm receipt of this letter, or to provide the VA with his most recent contact information. Therefore, the Board finds that VA has fulfilled its duty in attempting to locate the Veteran and provide him with notice of his VA examination. A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C. § 5107 (a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). VA's duty to assist the Veteran with this claim is not a one-way street. If the Veteran wants assistance in the development of his case, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As noted above, when a veteran fails to report for an examination, the claim shall be decided in accordance with 38 C.F.R. § 3.655 (b) or (c) (2017). As the Veteran was offered an opportunity to attend a VA examination, but he failed to report, the Board finds there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In sum, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis The Veteran contends that his service-connected bilateral hearing loss is more disabling than reflected by the current disability rating assigned by the RO. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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). Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85 (2017); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Regulations specifies that 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. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The rows in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The columns in Table VI represent 9 categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the row appropriate for the percentage of discrimination and the column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII in 38 C.F.R. § 4.85 by intersecting the column appropriate for the numeric designation for the ear having the better hearing acuity and the row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold 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. 38 C.F.R. § 4.86 (a). The provisions of 38 C.F.R. § 4.86 (b) further provide that when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIA, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable evaluation for his bilateral hearing loss under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in January 2012. On examination, the audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 25, 35, 70 and 70, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 20, 30, 75 and 80, respectively. The average pure tone threshold was 50 in the right ear and 51 in the left. Speech recognition ability was 98 percent in the right ear and 96 percent in the left ear. The results of the January 2012 examination correspond to Level I hearing for both ears. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a noncompensable disability rating is assigned. 38 C.F.R. § 4.85. The examiner noted the functional impact of the Veteran's hearing loss, indicating that it did impact ordinarily conditions of daily life including the ability to work. The Veteran reported that he has difficulty if the person speaking to him is a "soft talker. He also reported that he needs "double takes" during conversation or when directions are given by a supervisor. The Board has also considered whether an initial compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. Based on the January 2012 audiometric findings, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. As such, it is apparent that the noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). The Veteran underwent another VA audiological evaluation in January 2013. On examination, the audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 25, 40, 75 and 75, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 20, 40, 75 and 85, respectively. The average pure tone threshold was 54 in the right ear and 55 in the left. Speech recognition ability was 96 percent in the right and left ear. The results of the January 2013 examination correspond to Level I hearing for both ears. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a noncompensable disability rating is assigned. 38 C.F.R. § 4.85. The examiner noted the functional impact of the Veteran's hearing loss, indicating that it did impact ordinarily conditions of daily life including the ability to work. The Veteran reported that he is unable to concentrate in conversation. The Board has also considered whether an initial compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. Based on the January 2013 audiometric findings, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. As such, it is apparent that the noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). VA treatment records dated from 2013 to 2014 reflect the Veteran's complaints of ongoing hearing problems. During a December 2013 treatment visit, the Veteran reported to have difficulty learning due to his hearing loss. The Veteran was afforded another VA audiological examination in July 2014. On examination, the audiological evaluation revealed right ear auditory thresholds in the frequencies 1000, 2000, 3000 and 4000 Hertz as 25, 45, 70 and 75, respectively. For the left ear, auditory thresholds in the same frequencies were recorded as 25, 45, 75 and 85, respectively. The average pure tone threshold was 54 in the right ear and 58 in the left. Speech recognition ability was 96 percent in the right ear and 88 percent in the left ear. The results of the July 2014 VA examination correspond to Level I hearing in the right ear, and Level III hearing in the left ear. 38 C.F.R. § 4.85 (b). When these values are applied to Table VII, a noncompensable disability rating is still assigned. 38 C.F.R. § 4.85. The examiner noted the functional impact of the Veteran's hearing loss, indicating that it did impact ordinarily conditions of daily life including the ability to work. The Veteran reported that he has to do extra to comprehend, to make sure of what he is hearing. In addition, the July 2014 audiometric findings do not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hertz or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. As such, it is apparent that the noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). Based on these results, the Board concludes that an initial compensable rating for the Veteran's bilateral hearing loss is not warranted. It is apparent that the assigned noncompensable disability evaluation for the appeal period for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86. Although the Veteran contends that his bilateral hearing loss was more severe, and therefore warrants a higher evaluation, the assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The above determination is based upon consideration of applicable rating provisions. In addition, the VA examination reports specifically address the effect of the Veteran's hearing impairment on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Indeed, during the January 2012 VA examination, when asked how the Veteran's hearing loss impacts his life, as well as his ability to work, the VA examiner noted that the he experienced difficulty hearing conversations especially if someone was a "soft talker". It was further noted that the Veteran required "double takes" during conversation or when directions were provided by his boss. At the January 2013 VA examination, the VA examiner noted that the Veteran was "unable to concentrate" in conversations as a result of his hearing impairment. As noted above, during the December 2013 VA outpatient visit, the Veteran indicated that he experiences difficulty learning due to his hearing loss. At the July 2014 VA examination, the Veteran reported that he has to work "extra" hard to comprehend and to make sure he is hearing correctly. The Board acknowledges that the Veteran experiences difficulty hearing in various settings and situations; however, despite the difficulties experienced by the Veteran when it comes to comprehending conversations around him, and hearing his boss's instructions and directions, there is nothing in the record to show that he experiences difficulty carrying out and performing his activities of daily living, as a result of his hearing loss. In addition, the record reflects that the Veteran worked as a carpenter for most of his post-service life and more recently works as a handyman. There is nothing in the record to reflect that his hearing loss affects his ability to maintain his employment as a handyman. Furthermore, although all the examiners noted that the Veteran's hearing loss impacts his ability to work, none of the examiners stated or concluded that his hearing disability had a significant effect on his ability to maintain his employment. In this regard, the Veteran claims that a higher rating for his bilateral hearing loss is warranted, not that the VA examination reports were defective. See Martinak, 21 Vet. App. at 455. The Board has considered the statements made by the Veteran in which he asserted that his hearing loss disability warrants a compensable rating. However, the Board is bound in its decisions by the VA regulations for the rating of hearing loss. 38 U.S.C.A. § 7104 (c). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted. Therefore, the Board finds that the preponderance of the evidence is against an initial compensable schedular rating for hearing loss. Hence the appeal as to a higher schedular rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board has considered whether referral for an extraschedular rating is warranted for the relevant periods on appeal. The Board finds that the Veteran's symptoms associated with his bilateral hearing loss, to include difficulty hearing and understanding speech, and difficulty with word recognition, are aptly governed 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 neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. ORDER Entitlement to an initial compensable rating for hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs