Citation Nr: 0810224	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  06-07 489	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, 
Nebraska


THE ISSUE

Entitlement to a compensable rating for bilateral hearing 
loss.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Crohe, Associate Counsel


INTRODUCTION

The veteran's active military service extended from March 
1946 to April 1947.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Lincoln, Nebraska.  That rating decision denied an increased 
disability rating for the veteran's service-connected 
bilateral hearing loss.

In July 2007, a hearing was held before Mark W. Greenstreet 
who was designated by the Chairman to conduct that hearing, 
pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002).  A copy of 
the transcript of that hearing is of record.

A motion to advance this case on the Board's docket, which 
was granted for good cause in August 2007. 38 U.S.C.A. § 7107 
(West 2002); 38 C.F.R. § 20.900(c) (2007).

In August 2007, the Board remanded the claim for further 
development. 


FINDINGS OF FACT

The veteran's hearing acuity has been shown to be no worse 
than Level III in the right ear and no worse than Level IV 
the left ear. 


CONCLUSION OF LAW

A 10 percent rating for the veteran's bilateral hearing loss 
is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 
4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2007).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Preliminary Matters

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 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. 
§ 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  Proper VCAA 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; and (4) 
must ask the claimant to provide any evidence in his 
possession that pertains to the claim, in accordance with 
38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a 
claimant before the initial unfavorable RO decision on a 
claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on 
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The Board also notes that during the pendency of this appeal, 
on March 3, 2006, the Court issued a decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), which held that the VCAA notice requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to 
all five elements of a service connection claim.  Those five 
elements include: 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 of the disability.  The Court held that upon receipt of 
an application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Id. at 486.  

May 2005 (prior to the adjudication on appeal), March 2006, 
and August and September 2007 letters informed the appellant 
of what evidence was required to substantiate the claim of an 
increased rating for bilateral hearing loss and of the 
appellant's and VA's respective duties for obtaining 
evidence.  The letters also advised the veteran to submit any 
evidence in his possession that pertained to the claim.  

The March 2006 and September 2007 letters discussed the 
manner in which VA determines disability ratings and 
effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).  Additionally, the Board has considered the 
adequacy of the VCAA notice in light of the recent Court 
decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. 
App. January 30, 2008).  The Boards finds that the VCAA 
notice is adequate as the March 2006 and September 2007 
letters, which includes Dingess/Hartman notice, informs the 
appellant that, in evaluating claims for increase, VA looks 
at the nature and symptoms of the condition, severity and 
duration of the symptoms, and impact on employment.  The 
fundamental fairness of the adjudication process is not 
compromised here.

The content of the May 2005, March 2006, and August and 
September 2007 notice letters fully complied with the 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) regarding VA's duty to notify.  Not only has the 
veteran been provided with every opportunity to submit 
evidence and argument in support of his claim and to respond 
to VA notices, but the actions taken by VA have essentially 
cured the error in the timing of notice.  Further, the Board 
finds that the purpose behind the notice requirement has been 
satisfied because the veteran has been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claim, including testifying at a Travel Board hearing 
before the Board member below.  

As the Federal Circuit Court has stated, it is not required 
"that VCAA notification must always be contained in a single 
communication from the VA."  Mayfield, supra, 444 F.3d at 
1333.  

With respect to VA's duty to assist, the Board notes that 
identified treatment records have been obtained and 
associated with the record.  Neither the veteran nor his 
representative has identified any additional evidence or 
information which could be obtained to substantiate the 
claim.  The Board is also unaware of any such outstanding 
evidence or information.  The veteran has been provided with 
VA audiological evaluations.  Therefore, the Board is also 
satisfied that the RO/AMC has complied with the duty to 
assist requirements of the VCAA and the implementing 
regulations.

For the foregoing reasons, it is not prejudicial to the 
appellant for the Board to proceed to a final decision in 
this appeal.

II.  Factual Background

A September 2003 VA Audiology Clinic note indicated that 
puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
35
55
55
50
   LEFT
25
25
65
55
55

The reported average right ear puretone threshold was 49 
decibels, and speech discrimination was 86 percent.  The 
average left ear puretone threshold was 50 decibels, and 
speech discrimination was 86 percent.

An August 2004 VA Audiology Clinic note indicated that 
puretone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
35
55
50
45
   LEFT
25
25
65
55
60

The average right ear puretone threshold was 46.25 decibels, 
and speech discrimination was 88 percent.  The average left 
ear puretone threshold was 51.25 decibels, and speech 
discrimination was 84 percent.

In March 2005, a VA audiology clinic note showed that 
puretone thresholds were 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
35
55
50
50
   LEFT
25
25
65
55
40

The average right ear puretone threshold was 47.5 decibels, 
and speech discrimination was 80 percent.  The average left 
ear puretone threshold was 46.25 decibels, and speech 
discrimination was 76 percent.

On June 2005 VA Official Audiometry, puretone thresholds, in 
decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
40
60
55
50
   LEFT
20
30
70
55
60

The average right ear puretone threshold was 51.25 decibels, 
and speech discrimination was 86 percent.  The average left 
ear puretone threshold was 53.75 decibels, and speech 
discrimination was 86 percent.







A January 2007 Audiology Clinic note reported, puretone 
thresholds, in decibels, as:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
40
50
55
50
   LEFT
20
30
65
55
60

The average right ear puretone threshold was 48.75 decibels, 
and speech discrimination was 84 percent.  The average left 
ear puretone threshold was 52.5 decibels, and speech 
discrimination was 80 percent.

During his July 2007 Travel Board hearing, the veteran and 
his representative indicated that the veteran's hearing level 
was far worse than what was found on the 2005 VA Official 
audiometry and that since that time the veteran's hearing 
loss had increased in severity.  The veteran also testified 
that he had a hard time hearing speech when there was 
background noise.  

October 2007 VA Official Audiometry revealed puretone 
thresholds, in decibels, as:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
50
55
55
   LEFT
20
40
70
60
65

The average right ear puretone threshold was 51.25 decibels, 
and speech discrimination was 84 percent.  The average left 
ear puretone threshold was 58.75 decibels, and speech 
discrimination was 80 percent.

III.  Criteria & Analysis

The appropriate evaluation for a hearing impairment is 
determined under the criteria in 38 C.F.R. §§ 4.85, 4.86.

The Rating Schedule provides a table for ratings purposes 
(Table VI) to determine a Roman numeral designation (I 
through XI) for hearing impairment, based on testing (by a 
state- licensed audiologist) including puretone thresholds 
and speech discrimination (Maryland CNC test). See 38 C.F.R. 
§ 4.85.  Where there is an exceptional pattern of hearing 
impairment (as defined in 38 C.F.R. § 4.86) the rating may be 
solely on puretone threshold testing.  Table VII is used to 
determine the rating assigned by combining the Roman numeral 
designations for hearing impairment of each ear. Id.  Ratings 
for hearing impairment are derived by the mechanical 
application of the Ratings Schedule to the numeric 
designations assigned after audiometry evaluations are 
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Separate ratings can be assigned for separate periods of time 
based on the facts found, a practice known as "staged" 
ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

On March 2005 VA Audiology Clinic audiometry, the average 
right ear puretone threshold was 47.5 decibels, and speech 
discrimination was 80 percent.  The average left ear puretone 
threshold was 46.25 decibels, and speech discrimination was 
76 percent.  When the rating criteria were applied to the 
results of the March 2005 audiometry, it established that 
that veteran had Level III hearing acuity in each ear.  
Subsequently, June 2005 VA Official audiometry showed that 
the average right ear puretone threshold was 51.25 decibels, 
and speech discrimination was 86 percent.  The average left 
ear puretone threshold was 53.75 decibels, and speech 
discrimination was 86 percent.  When applied to the rating 
criteria, the veteran had Level II hearing acuity in each 
ear, however, since the puretone threshold in the left ear 
was 30 decibels or less at 1000 Hertz, and 70 decibels or 
more at 2000 Hertz, an exceptional pattern of hearing 
impairment was shown.  Therefore, the left ear hearing loss 
may be alternatively rated under Table VIA.  Under Table VIA, 
the left ear hearing acuity was Level IV.  Although the 
October 2007 VA Official audiometry did not show an 
exceptional hearing pattern, the hearing acuity in the left 
ear was Level IV and in the right ear was Level II.  

The Board notes that the results of the audiometries, 
although taken over a relatively short period of time, show 
marked variance.  Given this degree of inter-test 
inconsistency and the attendant uncertainty as to the 
accuracy of the bilateral  findings at any one audiometry, we 
conclude that the only fair method to assess the veteran's 
true level of impairment is to consider the test results for 
each ear discretely.  Thus, resolving all doubt in his favor, 
the Board finds that the veteran's hearing acuity has been 
shown to be no worse than Level III in the right ear and no 
worse than Level IV in the left ear.  Combining the hearing 
level designations for the two ears under Table VII results 
in no more than a 10 percent rating under Diagnostic Code 
6100.  Although an exceptional pattern of hearing impairment 
(as defined in 38 C.F.R. § 4.86), was shown, a rating under 
alternate criteria of Table VIA, would not allow for a higher 
rating.  

The rating of hearing loss disability involves a mechanical 
application of the rating schedule to numeric designations 
assigned to official audiometry results.  Here, such process 
establishes that a 10 percent rating, but no more, is 
warranted throughout the appeal period.  Hence, "staged" 
ratings are not warranted. 


ORDER
	
A 10 percent rating for bilateral hearing loss is granted, 
subject to the law and regulations governing payment of 
monetary awards.




____________________________________________
Mark W. Greenstreet
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs