Citation Nr: 0809720	
Decision Date: 03/24/08    Archive Date: 04/09/08

DOCKET NO.  06-11 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUES

1.  Entitlement to an initial compensable evaluation for 
bilateral hearing loss.

2.  Entitlement to service connection for diabetes mellitus. 


REPRESENTATION

Appellant represented by:	New Jersey Department of 
Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

B. A. Jonas, Associate Counsel




INTRODUCTION

The veteran served on active duty from October 1962 to March 
1966.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2004 rating decision by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in Newark, New Jersey.  

The United States Court of Appeals for Veterans Claims 
(Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 
257 (2006), that reversed a decision of the Board that had 
denied service connection for disabilities claimed as a 
result of exposure to herbicides.  The United States 
Department of Veterans Affairs disagrees with the Court's 
decision in Haas and appealed that decision to the United 
States Court of Appeals for the Federal Circuit.  To avoid 
burdens on the adjudication system, delays in the 
adjudication of other claims, and unnecessary expenditure of 
resources through remand or final adjudication of claims 
based on a court holding that may ultimately be overturned on 
appeal, on September 21, 2006, the Secretary of Veterans 
Affairs imposed a stay at the Board on the adjudication of 
claims affected by Haas.  The specific claims affected by the 
stay include those based on herbicide exposure in which the 
only evidence of exposure is receipt of the Vietnam Service 
Medal or service on a vessel off the shore of Vietnam.  Once 
a final decision is reached on appeal in the Haas case, the 
adjudication of any cases that have been stayed, including 
this one, will be resumed.


FINDING OF FACT

The veteran's service-connected hearing loss is manifested by 
no greater than Level I in each ear.





CONCLUSION OF LAW

The criteria for an initial compensable evaluation for 
bilateral hearing loss have not been met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1-4.14, 4.85-4.87, 
Diagnostic Code 6100 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Disability ratings are determined by evaluating the extent to 
which a veteran's service connected disability adversely 
affects his or her ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his or her symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155 
(West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007).  If two 
ratings are potentially applicable, the higher rating will be 
assigned if the disability more nearly approximates the 
criteria required for that rating; otherwise, the lower 
rating will be assigned.  See 38 C.F.R. § 4.7.  Any 
reasonable doubt regarding the degree of disability will be 
resolved in favor of the veteran.  See 38 U.S.C.A. § 4.3.

In cases where the original rating assignment is appealed, 
consideration must be given to whether the veteran deserves a 
higher rating at any point during the pendency of the claim.  
Fenderson v. West, 12 Vet. App. 119 (1999).  Such "staged 
ratings" are not appropriate in this case.

The standards for rating impairment of auditory acuity are 
set forth at 38 C.F.R. §§ 4.85-4.87.  In evaluating service- 
connected hearing impairment, disability ratings are derived 
by a mechanical application of the rating schedule to the 
numeric designations assigned after audiometric evaluations 
are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 
(1992).

Audiological examinations are conducted using the controlled 
speech discrimination tests together with the results of the 
pure tone audiometric test.  The horizontal lines in Table VI 
(in 38 C.F.R. § 4.85) represent nine categories of the 
percentage of discrimination based on the controlled speech 
discrimination test.  The vertical columns in table VI 
represent nine categories of decibel loss based on the pure 
tone audiometric test.  The numerical designation of impaired 
efficiency (levels I through XI) is determined for each ear 
by intersecting the horizontal row appropriate for the 
percentage of discrimination and the vertical column 
appropriate to pure tone decibel loss.

The percentage evaluation is found from Table VII (in 38 
C.F.R. § 4.85) by intersecting the horizontal row appropriate 
for the numeric designation for the ear having the better 
hearing and the vertical column appropriate to the numeric 
designation level for the ear having the poorer hearing.  For 
example, if the better ear has a numeric designation level of 
"V" and the poorer ear has a numeric designation level of 
"VII," the percentage evaluation is 30 percent, and the 
diagnostic code is 6100.  See 38 C.F.R. § 4.85(b) Diagnostic 
Codes 6100-6110 (2007).

The August 2004 VA audiological examination, the most recent 
of record, show findings entitling the veteran to a rating of 
0 percent for bilateral hearing loss.  That examination 
revealed that the right ear had a 33 average decibel loss and 
the left ear had an average of 30 decibel loss.  Speech 
discrimination was 96 percent in each ear.  Based on these 
findings, each ear has a Roman Numeral I loss.  38 C.F.R. 
§ 4.85 Table VI.  This equates to an evaluation of 0 percent.  
38 C.F.R. § 4.85 Table VII.  The test results did not meet 
the criteria in 38 C.F.R. § 4.86 for using the alternative 
method of evaluating exceptional patterns of hearing loss.

An extraschedular rating is not appropriate in this case.  
Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are 
limited to cases in which there is an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical the application of 
the regular scheduler rating standards.  The veteran, 
himself, has not described any marked interference with 
employment due to his hearing loss disability, and there is 
no evidence of record to indicate anything exceptional about 
the veteran's hearing loss compared to similarly situated 
veterans.  Thus, the schedular rating has been assigned 
appropriately.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 
4.1.  Accordingly, the increased benefit sought on appeal is 
denied.


Duties to notify and assist

VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical evidence or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), 
proper notice must inform the claimant 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 
claimant is expected to provide.  Proper notice must also ask 
the claimant to provide evidence in his or her possession 
that pertains to the claim.  Notice should be provided to a 
claimant before the initial unfavorable decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (1994).  

The RO's May 2004 notice letter described the evidence 
necessary to file a claim for service connection, and met all 
the requirements noted above; including informing the veteran 
that it was ultimately his responsibility to see to it that 
any records pertinent to his claim are received by VA.  The 
veteran was not given the specific notice required by Dingess 
v. Nicholson, 19 Vet. App. 473 (2006).  The Board concludes 
that the veteran was not prejudiced, however, as the claim 
for service connection for hearing loss was substantiated in 
2004 and the veteran appealed the denial of his claim for an 
increased disability evaluation.

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008).   
Further, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation - e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, slip op. at 5-6. 

Although the May 2004 notice does not contain all of the 
specific elements required by the recent Vazquez-Flores 
decision, the Board finds no prejudice to the appellant in 
proceeding with the present decision.  The letter suggested 
both lay and medical evidence that could support the 
veteran's claim.  The veteran was given actual notice of the 
specific rating criteria applied to his disability in both 
the rating decision and the statement of the case. 

VA also has a duty to assist a claimant in obtaining evidence 
to substantiate his or her claim.  38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159.  VA met its duty to assist the veteran.  
VA made reasonable efforts to identify and obtain relevant 
records in support of the veteran's claim for an increased 
initial evaluation.  38 U.S.C.A. § 5103A (a), (b), (c) (West 
2002 & Supp. 2007).  Specifically, the RO secured and 
associated with the claims file all evidence pertinent to 
this claim, including the VA examinations records. 


ORDER

Entitlement to an initial compensable evaluation for 
bilateral hearing loss is denied.

The issue of entitlement to service connection for diabetes 
mellitus is stayed.



____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs