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