Citation Nr: 1526552	
Decision Date: 06/23/15    Archive Date: 06/30/15

DOCKET NO.  14-30 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an increased rating for hearing loss, rated as 90 percent disabling prior to October 21, 2013, and as 100 percent disabling since.  

2.  Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability prior to May 24, 2012.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1951 to December 1955.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which increased the Veteran's disability rating for hearing loss to 90 percent, effective July 14, 2011.

In a June 2014 rating decision, the RO increased the rating for hearing loss to 100 percent, effective October 21, 2013, based on the receipt of a TDIU claim on that date.  Notably, however, the hearing loss claim has remained on appeal since at least an increased rating claim received in July 2011.

In a June 2013 letter, the Veteran expressed a desire to appear at a hearing with respect to the issue of entitlement to a TDIU.  In his August 2014 VA Form 9, dealing with the issue of an increased rating for hearing loss, he indicated that he did not wish to have a hearing.  The Board construes the recent statement as withdrawing any pending hearing request.

The record shows that the Veteran has alleged entitlement to a TDIU as a result of hearing loss.  The Board has jurisdiction to consider entitlement to a TDIU prior to May 24, 2014.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Inasmuch as a 100 percent disability rating is granted for hearing loss as of May 24, 2012, the issue entitlement to a TDIU as of that date is moot.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to special monthly compensation (SMC) prior to October 21, 2013, is reasonably raised by the record, and referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  

The issues of entitlement to a TDIU and an extraschedular rating prior to May 24, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  VA will notify the Veteran if further action is required on his part.



FINDINGS OF FACT

1.  Prior to May 24, 2012, the Veteran had level X hearing impairment in the left ear and level XI hearing impairment in the right ear.

2.  The evidence indicates that right cochlear implant surgery, performed on May 24, 2012, resulted in no measurable hearing for the Veteran.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating higher than 90 percent for hearing loss prior to May 24, 2012, have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.383, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 Diagnostic Code (DC) 6100 (2014).

2.  The criteria for a 100 percent disability rating for bilateral hearing loss are met as of May 24, 2012.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.383, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 DC 6100.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim medical or lay evidence must be provided demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The required VCAA notice was provided to the Veteran in a January 2012 letter.

VA treatment records have been obtained and the Veteran has been afforded multiple VA examinations, which have included all findings needed to evaluate his service-connected hearing loss.  The examiners have discussed the effects of the Veteran's hearing loss on his occupational functioning and daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his increased rating claim on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Increased Rating

      A.  Governing Law and Regulations

Disability ratings are based on the average impairment of earning capacity resulting from a disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2014).  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation is assigned if the disability more closely approximates the criteria for that rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating is assigned.  Id.

Although the Veteran's entire history is reviewed when assigning a disability evaluation, as required under 38 C.F.R. § 4.1, where the evidence demonstrates distinct periods in which the disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings may be necessary.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

A claimant bears the burden of presenting and supporting a claim for benefits.  38 U.S.C.A. § 5107(a).  The Board considers all information and lay and medical evidence of record when evaluating a claim.  38 U.S.C.A. § 5107(b).  Where there is an approximate balance of positive and negative evidence regarding any material issue, the Board gives the benefit of the doubt to the claimant.  Id.

      B.  Rating Criteria and Analysis

Evaluations of defective hearing 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, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  38 C.F.R. § 4.85, DC 6100 (2014).  

To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI.  Id.  Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations.  Martinak, 21 Vet. App. at 455, Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  

VA arrives at the proper designation of hearing loss in each ear by application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear.  Exceptional hearing loss exists if there is 30 decibels or less of hearing loss at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz; or, such as in the case of the Veteran, where the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86 (2014).  In such cases, the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, is applied.  Each ear is to be evaluated separately.  38 C.F.R. § 4.86(a).

The Veteran's hearing acuity was evaluated during a February 2012 VA examination.  The results of audiometric testing were as follows in decibels: 



HERTZ



1000
2000
3000
4000
RIGHT
95
95
105
105+
LEFT
105+
105+
105+
105+

The average pure tone threshold in the Veteran's right ear was 100 decibels and the average pure tone threshold in his left ear was 105 decibels.  Maryland CNC speech recognition testing revealed a score of 40 percent for the right ear, and a score of zero percent for the left ear.  These results equate to the assignment of level X hearing loss for the right ear, and level XI hearing loss for the left ear, upon application of Table VI.  These assignments correspond to a 90 percent disability rating for when applied to Table VII.  See 38 C.F.R. § 4.85.  Notably, the results are the same by application of either Table VI of Table VIa, thus there is no benefit to the Veteran in using one table over another.  See 38 C.F.R. § 4.86(a).

The evidence of record reveals that the Veteran had a cochlear implant placed for the left ear in 2003, which was the reason for there being no measurable hearing for that ear, without a form of hearing aid. 


In May 2012, shortly after the February 2012 VA examination, the Veteran had a cochlear implant placed for the right ear.  

His hearing acuity was later evaluated during a June 2014 VA audiological examination.  The Veteran did not have measurable hearing in either ear, and required the use of cochlear processors.  Based on this evaluation, the Veteran was assigned the 100 disability rating in the June 2014 rating decision.

The Veteran contended in his August 2014 VA Form 9 that his 100 percent rating should have at least been in effect since May 24, 2012, the date of surgery to place the right ear cochlear implant.  Indeed, the evidence indicates that as a result of the cochlear implant, the Veteran would have had no measurable hearing in his right ear as of May 24, 2012.

Accordingly, the Board finds that a 100 percent rating is warranted effective May 24, 2012, but not before.  In this regard, the results of the February 2012 rating decision show that only a 90 percent disability rating was warranted at that time.  

The Board has considered the Veteran's statements regarding his hearing loss prior to May 2012, including his report to the February 2012 VA examiner that his hearing loss affected his ability to communicate with others.  As just noted, however, the schedular rating is based on the mechanical application of the rating criteria to the test results.  See Martinak, supra.  While his competent statements have been taken into consideration, his described symptomatology does not alter the Board's rating assignment.

Thus, with respect to the application of a 100 percent disability rating as of May 24, 2012, all doubt is resolved in favor of the Veteran.  A preponderance of the evidence, however, is against a higher schedular disability rating prior to that date.  38 U.S.C.A. § 5107(a); Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001).  



ORDER

Entitlement to an increased, 100 percent,  rating for hearing loss is granted effective May 24, 2012.

Entitlement to an increased schedular rating, in excess of 90 percent, for hearing loss prior to May 24, 2012, is denied.


REMAND

The June 2014 VA examiner opined that while the Veteran's hearing loss likely resulted in communication difficulties in noisy environments without the use of cochlear processors, it did not render him unable to secure and maintain substantially gainful physical or sedentary employment, and that with the use of his cochlear implants, he would likely perform well even in mild to moderate background noise.  The examiner did not, however, provide an opinion as to whether the Veteran's hearing loss prior to his cochlear implant surgery in May 2012, together with his tinnitus, would have rendered him unable to secure or follow a substantially gainful occupation.

Given the need to fully evaluate the effect of the hearing loss disability on employability, it would be premature to decide whether extraschedular consideration is warranted.  Brambley v. Principi, 17 Vet. App. 20, 24 (2003).

Accordingly, this issue is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain a VA opinion with respect to whether the Veteran's service connected hearing loss and tinnitus rendered him unable to secure or follow a substantially gainful occupation for which his education and experience would qualify him prior to May 24, 2012.

The VA examiner should indicate that the claims file, including this REMAND, was reviewed.  The examiner must also provide reasons for all opinions addressing relevant medical and lay evidence of record.

2.  Determine whether the hearing loss issue should be referred for consideration of entitlement to an extraschedular rating prior to May 24, 2012.  

3.  If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs