Citation Nr: 0905406 Decision Date: 02/13/09 Archive Date: 02/19/09 DOCKET NO. 08-00 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran served on active duty from August 1969 to May 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for bilateral hearing loss and assigned an initial zero percent rating, effective January 23, 2007. FINDING OF FACT Authorized audiological evaluation shows that the veteran has Level IV hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The Board finds that the VCAA notification duty was satisfied in this case by a letter sent to the veteran in March 2007. This letter was provided to the veteran prior to the initial decision on the claim and addressed all three notice elements delineated in 38 C.F.R. § 3.159, as well as the additional requirements delineated by the Court in Dingess/Hartman. In any event, the Board observes that after the RO granted service connection for bilateral hearing loss in the May 2007 rating decision, the claim for service connection was substantiated, and any defect in the notice regarding that claim was therefore not prejudicial. See Dingess, 19 Vet. App. at 491. After the veteran filed his notice of disagreement with the initial rating assigned, he initiated the appellate process, triggering different, and in many respects, more detailed notice obligations, the requirements of which are set forth in sections 7105(d) and 5103A of the statute. Id., see also Goodwin v. Peake, 22 Vet. App. 128 (2008); 38 U.S.C.A. § 5103(A), 7105(d). A review of the record indicates that the notification requirements of 38 U.S.C.A. § 5104 and 7105 have been met in this case. The veteran was duly provided notice of the decision on appeal, as well as an explanation of the procedure for obtaining appellate review of the decision. Following receipt of his notice of disagreement, the veteran was appropriately notified of the pertinent rating criteria regarding the issue of entitlement to an initial compensable rating for hearing loss. See e.g. December 2007 Statement of the Case. Neither the veteran nor his representative has raised any allegations of prejudice regarding any notification deficiencies in this case. Goodwin v. Peake, 22 Vet. App. 128 (2008). For the foregoing reasons, the Board finds that no further notification action is required. Duty to Assist Under the VCAA, VA also has a duty to assist the veteran in the development of a claim. This includes assisting the veteran in procuring service medical records and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). In this case, the veteran's service treatment and personnel records are on file, as are post-service VA and private clinical records identified or submitted by the veteran. Despite being given the opportunity to do so, the veteran has neither submitted nor identified any additional post-service VA or private clinical records pertaining to his claim and none is evident from a review of the record. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2008). Finally, the Board observes that the RO has solicited the necessary medical opinion with respect to the claims adjudicated in this decision. The record shows that he was afforded a VA medical examination for VA compensation purposes in May 2007. Based on a review of the record in this case, the Board concludes that the record on appeal now contains sufficient medical evidence to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2008). For the reasons set forth above, and given the facts of this case, the Board finds that no further VCAA notification or development action is necessary. A remand would only result in unnecessarily delaying this matter with no benefit flowing to the veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Neither the veteran nor his representative has argued otherwise. Background The veteran's service treatment records show that at his April 1969 military induction medical examination, audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 -10 5 LEFT 5 -5 -5 5 At the veteran's April 1971 military discharge medical examination, audiological evaluation showed that his hearing acuity had decreased, with pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 35 LEFT 25 25 15 25 In January 2007, the veteran submitted an application for VA compensation benefits, seeking service connection for bilateral hearing loss, which he claimed was due to acoustic trauma during service. In May 2007, he amended his claim to include service connection for tinnitus. In support of his claim, the veteran submitted numerous audiometric examination results from his employer, dated from November 1975 to June 2005. The most recent audiometric test, for example, notes pure tone thresholds, presumably in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 10 50 85 LEFT 10 0 10 40 65 Speech audiometry findings, if any, were not recorded. The veteran underwent VA audiology examination in May 2007, at which he reported that he had served as an armor crewman during service. He recalled exposure to excess noise from combat, including tanks, artillery, weapons fire, mines, and explosions. The veteran indicated that he had had bilateral hearing loss and tinnitus since 1970. The veteran indicated that he had difficulty hearing and understanding conversations, as well as ringing in both ears. Audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 45 80 LEFT 20 15 20 45 65 The four-frequency left pure tone average was 40 decibels on the right and 36 decibels on the left. Speech recognition using the Maryland CNC Word list was 74 percent correct on the right and 88 percent correct on the left. After examining the veteran and reviewing his claims folder, the examiner diagnosed high frequency hearing loss and tinnitus, bilaterally. He concluded that it was at least as likely as not that the veteran's hearing loss and tinnitus were related to noise exposure during military service. In a May 2007 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. The RO assigned initial zero percent and 10 percent ratings, respectively. The veteran perfected an appeal with the initial zero percent rating assigned for his bilateral hearing loss, arguing that the severity of his hearing loss warranted at least a 10 percent rating. In support of his appeal, the veteran submitted a May 2007 examination report from a private hearing care center. Although the results of the audiological evaluation performed at that time are uninterpreted, they appear to show pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 45 85 LEFT 10 5 15 35 60 On an assessment of his communication problems, the veteran reported that he had symptoms such as difficulty in understanding speech and noted that he had to turn up the television louder than normal. Applicable Law Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, there is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown -- that the present level of the veteran's disability is the primary concern in an claim for an increased rating and that past medical reports should not be given precedence over current medical findings -- does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Rather, where a veteran appeals the initial rating assigned for a disability, as in the instant case with the veteran's hearing loss, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Under VA regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85 (2008). The regulatory provisions also provide two circumstances under which alternative tables can be employed. One is where the puretone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 55 decibels or greater. The second is where puretone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below, and are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86 (2008). Analysis Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for bilateral hearing loss. As discussed above, the May 2007 VA audiometric examination showed that the veteran had an average pure tone threshold of 40 decibels in the right ear with speech discrimination of 74 percent correct. He had an average pure tone threshold of 36 decibels in the left ear with speech discrimination of 88 percent correct. The only possible interpretation of these examination results is that the veteran's hearing loss is at Level IV in the right ear and II in the left ear. Under Table VI in the Rating Schedule, therefore, the criteria for an initial compensable rating have not been met. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered the provisions of 38 C.F.R. § 4.86, but the results of this audiometric examination show that the alternative table is not applicable. The Board has also considered the results of the private audiometric studies submitted by the veteran, including the recent May 2007 test results. The results of the audiometric testing are, unfortunately, uninterpreted and there is no indication that such conclusions were based on an examination conducted by a state-licensed audiologist, which included a controlled speech discrimination test using the Maryland CNC word list. 38 C.F.R. § 4.85 (2008). Thus, the Board must assign this evidence limited probative value. Regardless, the Board notes that the audiometric findings appear to be relatively consistent with the findings on the VA examinations discussed above, and would not provide a basis upon which to assign a compensable rating under Diagnostic Code 6100. The Board has carefully reviewed the veteran's claims folder in its entirety, but finds no other probative evidence of record showing that his hearing loss disability is more severe for compensation purposes than demonstrated on the May 2007 VA audiological evaluation discussed above. There is no basis for the assignment of staged ratings. The Board is sympathetic to the symptoms the veteran reports as a result of his hearing loss disability, such as difficulty hearing in noisy environments. While the Board finds his statements to be credible, they do not provide sufficient evidence on which to award a higher initial rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to a noncompensable disability rating. For these reasons and bases, the Board finds that the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss. The veteran is advised that should his hearing acuity worsen, he may file a claim for an increased rating with the RO. In reaching this decision, the Board has considered whether an extraschedular rating is warranted with respect to the veteran's bilateral hearing loss. Bagwell v. Brown, 9 Vet. App. 157 (1996) (the question of extraschedular rating is a component of the veteran's claim for an increased rating). However, after reviewing the record, the Board finds that there is no basis for further action on this question. There is no objective evidence of record demonstrating that the veteran's service-connected hearing loss markedly interferes with his employment, beyond that contemplated by the rating schedule. There is also no evidence of record showing that he has been frequently hospitalized due to hearing loss. Indeed, it does not appear that he has been hospitalized for this disability at all. Consequently, the Board finds that no further action on this matter is warranted. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs