Citation Nr: 0809806 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-44 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from May 1967 to February 1980, and in the United States Navy from November 1981 to January 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The RO granted service connection for bilateral hearing loss and assigned a noncompensable rating. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The competent and probative medical evidence of record demonstrates that, at its most limited, the veteran has Level II hearing loss, bilaterally. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria The veteran asserts that a compensable evaluation is warranted for his service-connected bilateral hearing loss. In an August 2003 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective April 21, 2003. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The Ratings Schedule, under Diagnostic Code 6100, provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I though XI) for hearing impairment, established by a state licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85 (2007). 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. The Board observes that summary information accompanying the rating criteria for evaluating audiologic disabilities specifically indicates that, except for certain "unusual patterns of hearing impairment," they do not constitute liberalizing provisions. 38 C.F.R. § 4.86 (2007). The "unusual patterns of hearing impairment" include cases where the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Id. The United States Court of Appeals for Veterans Claims (Court) has noted that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As previously noted, by rating decision in August 2003, the RO granted service connection for bilateral hearing loss and assigned a zero percent rating, effective April 21, 2003, the date of receipt of the veteran's claim. The veteran maintains that a higher rating is warranted. On the authorized audiological evaluation, performed under contract for VA by QTC in July 2003, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 40 30 40 LEFT 15 45 50 55 65 Average puretone thresholds were 31.25 decibels in the right ear and 53.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. VA outpatient treatment reports show that on audiological evaluation in December 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 45 40 40 LEFT 15 35 45 50 50 Average puretone thresholds were 37.5 decibels in the right ear and 45 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The outpatient treatment reports also show that on VA audiological evaluation in June 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 30 45 40 40 LEFT 10 35 45 50 55 Average puretone thresholds were 38.75 decibels in the right ear and 46.25 decibels in the left ear. Speech audiometry revealed speech discrimination of 100 percent in the right ear and of 100 percent in the left ear. On the authorized audiological evaluation, performed under contract for VA by QTC in September 2006, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 45 40 40 LEFT 15 35 40 50 55 Average puretone thresholds were 38.75 decibels in the right ear and 45 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear. Although the veteran's audiological tests conducted since 2003 show some fluctuations in the threshold levels, none of the audiological tests indicate that the veteran is entitled to an increased evaluation. Based upon the results of the July 2003 audiological evaluation, from Table VI of 38 C.F.R. § 4.85, a Roman numeral II is derived for the right ear and a Roman numeral II is derived for the left ear. A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II with column II. Thus, at the time of the July 2003 audiological evaluation, the veteran's bilateral hearing loss disability was 0 percent disabling. Even the audiological evaluations contained within the veteran's outpatient treatment reports fail to show increased hearing impairment so as to warrant a higher rating. Both audiology reports show a Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear. Again, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. In addition to the foregoing, on September 2006 QTC examination, the veteran's hearing loss level also warrants a noncompensable rating. A Roman numeral I is derived for the right ear and a Roman numeral I is derived for the left ear. A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I with column I. The provisions of 38 C.F.R. § 4.86 (Exceptional patterns of hearing impairment) are not applicable, as the audiometric results do not show puretone thresholds of 55 decibels or greater in all four of the relevant frequencies for either ear and none of the evaluations indicated a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. The Board, therefore, is not permitted to utilize Table VIA in determining the veteran's hearing loss disability. There is no contrary evidence of record suggesting that the veteran's puretone thresholds meet the criteria for a higher rating. Thus, the Board finds that since service connection has been in effect, the criteria for a compensable evaluation have not been met. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board is aware of the veteran's multiple statements about not being able to hear well; however, it must be reiterated that disability ratings for hearing impairment are derived by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann, 3 Vet. App. at 349. There was no indication that the audiological evaluations produced test results which were invalid. Nevertheless, the clinical findings establish that the preponderance of the evidence is against a compensable evaluation for bilateral hearing loss. Therefore, the benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The RO provided a VCAA notice letter to the veteran in April 2003, prior to the initial adjudication of the claim in August 2003. The VCAA letter notified the veteran that VA would try to assist him in obtaining medical records, employment records, or records from federal agencies and what evidence he should submit. The letter also told the veteran that he should, among other things, send the veteran "any medical reports" and "any treatment records pertinent to [his] claimed conditions." The letter further informed the veteran that it was his responsibility to support his claim with the appropriate evidence. Other letters sent in connection with other claims indicated that the veteran should submit "any evidence" that he thinks would support his claim. The Board finds that VA has satisfied the four elements of Pelegrini, supra. To whatever extent the decision of the Court in Dingess v. Nicholson, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. The appellant was sent a letter compliant with Dingess in March 2006 and the claim was subsequently readjudicated in an October 2006 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The appellant has not been prejudiced. The record establishes that the appellant has been afforded a meaningful opportunity to participate in the adjudication of his claim. 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. Here, the VCAA duty to notify has not been satisfied with respect to the requirements set forth by Vazquez-Flores. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores v. Peake, No. 05-0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the veteran has shown actual knowledge of the information necessary to substantiate his claim. Specifically, in a VA Form 9 received in December 2004, the veteran referenced the 94 percent "standard" and the Maryland CNC test. The veteran also results from his hearing test. The Board finds that the veteran is aware of the requirements for an increased rating and is also aware of the type of medical evidence needed to substantiate his claim. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims and any error found is harmless. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records and VA outpatient treatment records. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran has been provided with multiple examinations, performed under contract by QTC in July 2003 and September 2006. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs