Citation Nr: 0809892 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-18 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from September 1954 to September 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In that decision the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating effective in December 2003. The veteran disagrees with the assigned rating. In December 2006, the veteran testified before the undersigned Acting Veterans Law Judge at a Board hearing at the RO. A transcript of that hearing has been incorporated into the claims file. This matter was previously before the Board in April 2007 at which time it was remanded to the RO for further evidentiary development. FINDING OF FACT From the date of the grant of service connection, the veteran has had bilateral hearing loss manifested by no greater than level I hearing acuity in the right ear and level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for a compensable schedular evaluation for bilateral hearing loss have not been met from the effective date of the grant of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.85, 4.86 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In this case, VA satisfied its duties to the veteran in a VCAA letter issued in July 2004. The letter predated the August 2004 rating decision. Since the appellate issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which the July 2004 VCAA letter was duly sent), another VCAA notice is not required. VAOPGCPREC 8-2003. Furthermore, collectively, the July 2004 VCAA letter, February 2005 statement of the case, and June 2005 and October 2007 supplemental statements of the case, notified the veteran of what information and evidence is needed to substantiate his claim for a higher initial rating for bilateral hearing loss, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Id.; but see VAOPGCPREC 1-2004. Recently, the Court held that 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. In this case, taken together, the July 2004 VCAA letter, February 2005 statement of the case and June 2005 and October 2007 supplemental statements of the case informed the veteran of the evidence necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and indicated the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the holdings in Quartuccio, supra, and Vazquez-Flores, supra. Moreover, the October 2007 supplemental statement of the case included the specific information regarding disability rating(s) and effective date(s) mandated by the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also finds that the RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claim, including obtaining medical records identified by the appellant. Regarding affording the veteran examinations during the pendency of this appeal, the veteran was afforded examinations during the pendency of this appeal. Also, the veteran was provided with the opportunity to attend a Board hearing which he attended in December 2006. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim decided herein and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts In December 2003, the veteran filed a claim for service connection for hearing loss due to noise exposure in service. On the authorized audiological evaluation in July 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 60 85 LEFT 15 20 25 50 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The veteran was diagnosed as having mild to profound mixed mixed hearing loss in the right ear and moderately-severe sensorineural hearing loss (3000Hz to 8000 Hz). Results of a private audiogram performed in September 2004 at Deaf, Hearing & Sign Language Center were interpreted as revealing hearing within normal limits from 250Hz, then sloping to a moderate-severe sensorineural hearing loss from 4000Hz to 8000Hz in the left ear. The right ear revealed a mild mixed hearing loss from 250 Hz-2000 Hz, then sloping to a severe hearing loss from 3000-8000 Hz in the right ear. Speech recognition scores were 92 percent in the right and left ears. The record contains a statement from private audiologist Lisa Hamzik, M.S., CCC-A, and an Audiological Chart, both dated in May 2005. The Audiological Chart is in graph form and contains an impression of mild to moderate/severe sloping conductive to mixed hearing loss with excellent speech recognition scores in the right ear and mild conductive to moderate/severe sensorineural hearing loss with excellent speech recognition scores. The veteran testified at a Board hearing in December 2006 that his hearing loss had been gradually getting worse since his last VA examination in 2004 and he was no longer able to talk on the telephone. On the authorized audiological evaluation in June 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 45 55 85 LEFT 25 30 35 50 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The veteran was diagnosed as having mild to severe mixed hearing loss in the right ear and mild to moderately severe sensorineural hearing loss in the left ear from 1000Hz to 8000 Hz. VA outpatient records in 2007 indicate that the veteran had a 40 year history of hearing loss and that hearing aids had not been recommended. III. Analysis Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case regarding an increased rating claim, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (2007). Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85 (2007). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 (2007). To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b) (2007). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e) (2007). If puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a) (2007). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b) (2007). VA audiology examination findings in July 2004 revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 55 decibels in the right ear and 38 decibels in the left ear. Speech recognition ability was 96 percent in the right ear and 100 percent in the left ear. The audiological findings correspond to a level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI (2007). Under Table VII, a designation of level I hearing in the right ear and level I hearing in the left ear yields a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). VA audiology examination findings in June 2007 revealed that the average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 56 decibels in the right ear and 43 decibels in the left ear. Speech recognition ability was 96 percent in the right ear and 100 percent in the left ear. The audiological findings correspond to a level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI (2007). Under Table VII, a designation of level I hearing in the right ear and level I hearing in the left ear yields a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). Consideration has also been given to section 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the July 2004 or June 2007 examination findings. Pure tone threshold levels were neither 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, nor were they 30 dB or less at 1,000 hertz and 70 dB or more at 2000 Hz. See 38 C.F.R. § 4.86(a) & (b). The private audiological records from Deaf, Hearing & Sign Language Center in September 2004 and from audiologist Lisa Hamzik, M.S. CCC-A in May 2005 have also been considered, but are inadequate for rating purposes. This is because the findings do not conform to the regulatory rating requirements for evaluating hearing impairment as specified under 38 C.F.R. § 4.85. The Board in no way discounts the difficulties that the veteran experiences as a result of his hearing loss. However, as was explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Also, the Board finds that the veteran's hearing loss is not so unusual or exceptional as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the veteran's bilateral hearing loss has not necessitated frequent periods of hospitalization and there is no objective evidence that it resulted in marked interference with his employment. For the foregoing reasons, the veteran's claim for an initial compensable evaluation for bilateral hearing loss must be denied from the date of the grant of service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs