Citation Nr: 18154415 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 17-00 171 DATE: November 29, 2018 ORDER An evaluation in excess of 10 percent prior to October 3, 2018, and in excess of 30 percent from that date, for bilateral hearing loss, is denied. FINDINGS OF FACT 1. Prior to October 3, 2018, the Veteran’s bilateral hearing loss was manifested by at worst level III acuity in the right ear and level IV acuity in the left ear. 2. From October 3, 2018, the Veteran’s bilateral hearing loss was manifested by at worst level VI acuity in each ear. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent prior to October 3, 2018, and in excess of 30 percent from that date, for bilateral hearing loss have, not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1953 to November 1955. In February 2018 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. This claim was previously before the Board in March 2018, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, the Veteran’s April 2016 claim was submitted as a fully developed claim with a Fully Developed Claim Certification executed by the Veteran. Under the framework for a fully developed claim, a claim is submitted in a “fully developed” status, limiting the need for VA to undertake further development of the claim. When filing a fully developed claim, a veteran submits all evidence relevant and pertinent to his or her claim other than service treatment records (STRs) and treatment records from VA medical centers, which will be obtained by VA. Under certain circumstances, additional development, including obtaining additional records and providing the veteran with a VA medical examination, may still be required prior to the adjudication of the claim. The fully developed claim form includes notice to the veteran of what evidence is required to substantiate a claim and of the veteran’s and VA’s respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. Thus, the notice that is part of the claim form submitted by the Veteran and satisfies the duty to notify. With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs) and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with examinations. Overall, the examiners provided well-reasoned rationales for the opinions, except where noted below. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran’s representative wrote in November 2018 that the VA examiner did not adequately assess the effects of the Veteran’s hearing loss. However, the July 2016 examiner noted that the Veteran reported difficulty hearing conversation and the Veteran’s functional limitations were otherwise considered by the Board at the Veteran’s hearing before the Board in February 2018. The VA has therefore adequately considered the Veteran’s functional limitations related to the Veteran’s hearing loss. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In summary, while the October 2018 examination was limited to testing the Veteran’s hearing, the July 2016 examination report, hearing testimony, and statements that are of record show the effects of the hearing loss. Therefore, further examination in this regard is not warranted. The Veteran and his representative have also not made the regional office or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of the issue. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Entitlement to an evaluation in excess of 10 percent prior to October 3, 2018, and in excess of 30 percent from that date, for bilateral hearing loss Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when 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, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I for essential normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of the speech discrimination and pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.8, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. 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). When the pure tone threshold is 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). At a July 2016 VA, the Veteran reported difficulty hearing conversation, especially with his right ear. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 55 75 90 LEFT 5 30 60 60 75 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 82 percent in the left ear. Average pure tone threshold averages were 66 on the right and 56 on the left. In October 2016 and December 2016 that the Veteran wrote that his hearing loss had a profound effect on his daily life. The Veteran later testified at the February 2018 Board hearing that he missed a lot of what is said on television unless he has his hearing aids in and that he has difficulty understanding everyday conversation. The Veteran had another VA examination in October 2018. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 55 65 75 100 LEFT 10 35 60 65 70 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 64 percent in the left ear. Pure tone threshold averages were 74 on the right and 58 on the left. The examiner opined that the Veteran’s hearing loss does not impact ordinary conditions of daily life. This aspect of the opinion is not given significant probative value because the Veteran’s testimony from the February 2018 Board hearing and statements show that the hearing loss does impact the Veteran’s daily life. Exceptional patterns of hearing loss were not present at the July 2016 VA examination. See 38 C.F.R. § 4.86. Therefore, Table VIA will not be used. When applying the pure tone averages and speech recognition scores from July 2016 to Table VI, the right ear is assigned a Level III and the left ear is assigned a Level IV. The Board then applies those levels to Table VII, which results in a 10 percent evaluation for the Veteran’s bilateral hearing loss. At the October 2018 VA examination, there was an exceptional pattern of hearing loss for the right ear because the pure tone thresholds at each of the specified frequencies was 55 or over. Therefore, Table VI or VIa, whichever results in the higher numeral, will be used. See 38 C.F.R. § 4.86(a). When applying the pure tone averages and speech recognition scores from October 2018 to Table VI, the right ear is assigned a Level V and the left ear is assigned a Level VI. Using Table VIa, the right ear is assigned a Level VI. The Board then applies the level VI for each ear to Table VII, which results in a 30 percent evaluation for the Veteran’s bilateral hearing loss. The Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’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.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. The Veteran has reported that his hearing loss causes him to miss a lot of what is on television and to have difficulty with conversation. The Board finds that the symptoms associated with the Veteran’s hearing loss, which include difficulty hearing, are already contemplated by the rating criteria and the assigned ratings, and the medical evidence fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate. As the available schedular criteria for bilateral hearing loss are adequate, referral for consideration of an extraschedular rating is not warranted. There has also not been marked interference with employment or frequent periods of hospitalization. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect he is unemployable due to his service-connected bilateral hearing loss. While the record shows that there may be some interference with some job-related activities due to the service-connected disability, there is no evidence of unemployability, and thus consideration of a TDIU is not warranted. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to “staged” ratings for his service-connected bilateral hearing loss, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel