Citation Nr: 0810544 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-36 124 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for osteoarthritis of the left knee. 2. Entitlement to service connection for an eye disability, claimed as eye sensitivity and pain. 3. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss, prior to March 1, 2006. 4. Entitlement to restoration of an initial 10 percent rating for bilateral hearing loss, from March 1, 2006. 5. Eligibility for nonservice-connected pension benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from October 1965 to February 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal of an October 2004 rating decision in which the RO denied service connection for eye sensitivity and pain and for osteoarthritis of the left knee and for entitlement to a nonservice-connected pension. In that decision, the RO also granted service connection for bilateral hearing loss and assigned an initial 10 percent rating, effective December 3, 2003. In January 2005, the veteran filed a notice of disagreement (NOD) with regard to denial of the service- connection and pension claims and with regard to the initial rating assigned for bilateral hearing loss; a statement of the case (SOC) was issued in November 2004. In a September 2005 rating decision, the RO proposed to reduce the evaluation for bilateral hearing loss to a noncompensable rating because the RO determined that the compensable rating assigned in the October 2004 rating decision was clearly and unmistakably erroneous. In November 2005, the RO finalized the reduction to a noncompensable rating for bilateral hearing loss, effective March 1, 2006 (and issued a supplemental SOC (SSOC) continuing the 10 percent rating prior to March 1, 2006 and assigning a noncompensable rating from that date). The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2004. In August 2005, the veteran testified during an RO hearing; a copy of the transcript is of record. Although the veteran was scheduled for a video conference hearing before a Veterans Law Judge (VLJ) at the RO in August 2006, he failed to appear and later withdrew his request for a video conference hearing in writing in September 2006. See 38 C.F.R. § 20.704(e) (2006). Because the bilateral hearing loss claims on appeal involve a request for higher initial ratings following the grant of service connection, the Board has characterized these claims in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO assigned an initial 10 percent rating from the effective date of the grant of service connection through February 28, 2006 and a noncompensable rating from March 1, 2006, as higher ratings at each stage are available, the veteran is presumed to seek the maximum available benefit. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). Further, the Board notes that the veteran's rating reduction arose in response to his claim for a higher initial rating for his service-connected bilateral hearing loss in a January 2005 NOD. While the RO characterized the higher rating issues on appeal as entitlement to a rating in excess 10 percent for bilateral hearing loss from December 3, 2003 to March 1, 2006 and entitlement to a compensable rating for bilateral hearing loss from March 1, 2006, the Board notes that the RO clearly considered and adjudicated the veteran's claims for restoration of a 10 percent rating for bilateral hearing loss (see the November 2005 SSOC) and for a rating in excess of 10 percent for bilateral hearing loss (see the September 2005 SOC and November 2005 SSOC). In light of the evidence of record, and to give the veteran every consideration in connection with the appeal, the Board has characterized the veteran's appeal as encompassing both the increased rating claim and the claim for restoration, as set forth on the title page of this decision. As a final preliminary matter, the Board notes that, during his hearing, the veteran reported that because of incidents in which battery acid and gasoline got into his eyes, he has suffered from migraine headaches since service. The Board construes this as a claim for service connection for migraine headaches; and as such it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim herein decided has been accomplished. 2. A left knee disability (osteoarthritis) was first diagnosed many years after the veteran's discharge from service, and there is no competent evidence or opinion of a medical relationship between any such current disability and the veteran's military service. 3. The veteran's defective vision (refractive error) is not a disability for VA compensation purposes. 4. While the veteran is shown to have refractive error, there is no competent medical evidence of a current eye disability (claimed as eye sensitivity and pain). 5. September 2004 and 2005 VA audiological examinations revealed no worse than Level II hearing in each ear. 6. In an October 2004 rating decision, the RO assigned an initial 10 percent rating for bilateral hearing loss, effective December 3, 2003; the rating was based on a September 2004 VA examination report. 7. Following a review of the October 2004 rating action, in a September 2005 rating decision, the RO determined that the earlier rating decision had improperly assigned an initial 10 percent rating for bilateral hearing loss using Table VIa (which is to be used only for exceptional patterns of hearing impairment), as such, that decision contained clear and unmistakable error (CUE), and, as the VA examination reports showed that the veteran's hearing loss warranted a noncompensable rating, the RO proposed reducing the rating for the veteran's bilateral hearing loss from 10 percent to zero (0) percent. In a November 2005 rating decision, following a September 2005 VA examination, the RO implemented the reduction, effective March 1, 2006. 8. The veteran's annual countable income is excessive for receipt of nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoarthritis of the left knee are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. The criteria for service connection for an eye disability (claimed as eye sensitivity and pain) are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.9, 3.303 (2007). 3. The criteria for an initial rating in excess of 10 percent for bilateral hearing loss, prior to March 1, 2006, have not been met. 38 U.S.C.A. §§ 1155, 1160, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.85, Diagnostic Code 6100 (2003-2007). 4. The criteria for restoration of an initial 10 percent rating for bilateral hearing loss from March 1, 2006, have not been met. 38 U.S.C.A. §§ 1155, 1160, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.105(a), 3.159, 3.344, 4.1, 4.2, 4.7, 4.85, Diagnostic Code 6100 (2005-2007). 5. The claim of entitlement to nonservice-connected pension benefits is without legal merit. 38 U.S.C.A. §§ 101, 1501, 1503, 1521 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. In addition, the Board is aware of the recent decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008), applicable to claims for increased ratings. In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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; (2) 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini,18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Initially, the Board notes that, with respect to the nonservice-connected pension claim, in a March 2004 pre- rating letter, the RO explained how to establish entitlement to VA nonservice-connected pension benefits, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim, and afforded opportunity to provide information and evidence pertinent to the claim. The October 2004 rating decision on appeal reflects the initial adjudication of the claim after issuance of that letter. Hence, the March 2004 letter met all four of Pelegrini's content of notice requirements, as well as the VCAA's timing of notice requirement. Further, it appears that all evidence pertinent to the claim is of record. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant in connection with this claim. As will be explained below, the claim for nonservice-connected pension benefits lacks legal merit; therefore, the duties to notify and assist required by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Pertinent to the remaining claims on appeal, in pre-rating letters issued in March, May and August 2004, the RO provided notice to the claimant regarding what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the veteran, and what information and evidence would be obtained by VA. All three letters also requested that the veteran submit any evidence in his possession that pertained to the claims. The October 2004 rating decision reflects initial adjudication of the claims after issuance of these letters. Clearly, these letters meet Pelegrini's content of notice requirements, as well as the VCAA's timing of notice requirement, with regard to the veteran's service connection claims. Further, the SOC and the SSOC set forth the criteria for higher ratings for bilateral hearing loss, which is sufficient under Dingess/Hartman. While it was not until a March 2006 post-rating letter that the RO informed the appellant of how initial disability ratings and/or effective dates are assigned and the type of evidence that impacts those determinations, the timing of this notice is not shown to prejudice the appellant. As the Board's decision herein denies each claim now under consideration, no (other) disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. The Board acknowledges that the notice letters provided to the veteran do not contain the level of specificity set forth in Vazquez-Flores. However, the Board finds that (to the extent that Vazquez-Flores applies to claims for higher initial rating) any such procedural defect does not constitute prejudicial error in this appeal. The claims file reflects evidence of actual knowledge on the part of the veteran that the claimant must provide, or ask VA 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 and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claim(s). See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the veteran has provided testimony at an RO hearing and submitted a statement dated in October 2005 addressing the severity of his hearing loss and the effects it has on his daily life. His testimony and subsequent statement indicates an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher rating. Significantly, the Court in Vazquez-Flores held that 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." Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent evidence associated with the claims file consists of the veteran's service medical records, post-service private medical records, as well as treatment records from the Manchester, New Hampshire VA Medical Center (VAMC) and the reports of VA examinations. Also of record and considered in connection with each claim on appeal are the veteran's hearing transcript and various written statements provided by the veteran. Moreover, no further development to create any additional evidence for consideration in connection with any of the claims on appeal is warranted. As explained in more detail below, the claims for service connection are being denied because there is no medical evidence whatsoever that the veteran either currently has the claimed disability, the disorder is not a disability for VA compensation purposes or there is no medical evidence linking the claimed disability to service. As the current record does not reflect even a prima facie claim for service connection, there is no requirement for VA to arrange for a medical examination and/or to obtain a medical opinion in connection with the claims being denied. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). In summary, the duties imposed by the VCAA have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). A "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hypertension during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). After a full review of the record, including the medical evidence and the veteran's statements and testimony, the Board finds that service connection for osteoarthritis of the left knee and a claimed eye disability is not warranted. A. Left Knee In written statements and during his hearing testimony, the veteran reported that, while serving in Thailand, he had injured his left knee jumping out of a truck and falling over a pile of lumber into a hole; that, after service, while training at a police academy in 1969, he was required to do a lot of running and began having pain in the left knee; and that the pain persisted and he was eventually diagnosed with a torn meniscus and much later osteoarthritis, undergoing three separate surgical procedures. The veteran testified that he could not remember whether he ever received treatment for his left knee in service. The musculoskeletal system and lower extremities were noted as normal on the veteran's September 1965 enlistment examination. Service treatment records show that, when the veteran was splashed with gasoline in March 1968, it entered the right eye, he fell and was treated for a minor abrasion to the right knee. There is no evidence of complaints of, or treatment for, a left knee injury during service. The musculoskeletal system and lower extremities were noted as normal on the veteran's January 1969 separation examination. Although the veteran claims that he began having problems with left knee pain while attending a police academy later in 1969, the RO was unable to obtain records from the Ann Arundel Hospital to confirm his statements as they had been destroyed. The first documented medical evidence of a left knee disability appears to be in early 1996. A February 1996 Lahey Hitchcock Clinic treatment note reflects that the veteran reported twisting his knee while cross-country skiing during the prior month. January 1996 x-rays showed mild degenerative changes involving the left knee but no fracture. His knee was placed in an immobilizer. Surgery was performed on the left knee in May 1996, which revealed that the lateral meniscus only showed a small rim due to a prior meniscectomy with no evidence of tearing. The post-operative diagnosis was left knee retropatellar chondromalacia and chondromalacia of medial femoral condyle. Subsequent, private medical records show continuing treatment for complaints of pain and osteoarthritis of the left knee with additional surgery in August 2000. Thus, the first diagnosis of osteoarthritis of the left knee was approximately 27 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Moreover, neither the above noted documents, nor any other medical records reflecting a diagnosis of osteoarthritis of the left knee, establishes a medical nexus between the veteran's current left knee disability and the veteran's military service, and the veteran has not presented, or even alluded to the existence of any such written medical opinion. In short, there is no competent evidence to support the claim. B. Eye Disability In written statements and during his hearing testimony, the veteran reported that, as a child he was diagnosed with astigmatism and used/uses glasses for reading and working with a computer; that, while in the military, he got battery acid from a bomb loader in his eyes when an airman struck a battery with a ball peen hammer and it exploded sending the contents into the veteran's eyes, in September 1967; that, in early 1968, gasoline from an overhead tank engulfed his entire body and affected both eyes, which were bandaged for three days; that, since these two in-service chemical accidents, he has had eye pain and headaches at times over the ensuing years; and that he has used eye drops, over-the- counter drugs and dark sunglasses for pain and sensitivity to light. Service treatment records reflect that the veteran was treated for acid in the eyes, in September 1967, and for headaches, pain and bloodshot eyes of a week's duration following chemical conjunctivitis, in November 1967. A March 1968 accident report shows that, while removing a hose, the nozzle came loose and splashed the veteran with gasoline. The gasoline entered his right eye and he was treated for chemical conjunctivitis in the right eye. In August 1968, the veteran was treated for a foreign body in his left eye. On the veteran's January 1969 separation examination report, his vision was 20/20 in both eyes and clinical findings for the eyes were normal. The veteran denied any eye trouble in the medical history portion of that report. Post-service private records show no complaints of, or treatment for, any eye disorder, except for a February 2001 eyeglass prescription for refractive error. VA treatment records show that, in September 2003, the veteran came in to have an eyeglass prescription filled. In January 2004, the veteran was seen for a red, irritated left eye, which had started four days earlier. He reported a prior history of gasoline in both eyes 36 years ago, with sensitivity to light since then. The veteran wore glasses for near vision only. On examination, no discharge, burning, itchiness, double vision or light sensitivity was noted, even though the left eye was red, irritated and responded to foreign body sensation. Left eye vision was blurry. Distant vision was good in the right eye. The veteran reported that symptoms were better after using natural tears. Except for refractive error, the impression was diffuse episcleritis in the left eye (that is, inflammation of the sclera), for which he was given Vasocon to be used four times a day and tears to be used as needed. He was told to use cold compresses as needed and to return if symptoms persisted or worsened. He did not return for a follow-up. Considering the claim in light of the above, the Board notes that the record does not reflect the presence of a current disability upon which to predicate a grant of service connection for an eye disability. Although the veteran claimed sensitivity to light, none was found on evaluation in January 2004. At that time, he was noted to have some eye pain, along with an acute inflammation of the sclera of the left eye. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Here, it appears that his symptoms of episcleritis resolved with treatment. As regards the diagnoses of refractive errors (astigmatism and presbyopia), the Board points out that refractive errors are defects of the form or structure of the eye of congenital or developmental origin for which service connection may not be granted. See 38 C.F.R. §§ 4.9, 3.303. The Board notes that service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990), Carpenter v. Brown, 8 Vet. App. 240, 245 (1995), and Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). However, there is no evidence whatsoever of any chronic disability in this case. As such, there is no competent evidence of a current disability upon which to predicate a grant of service connection on any basis, and, hence, no valid claim for service connection. See, e,g., Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau, 2 Vet. App at 144. C. All Disabilities In addition to the medical evidence, in adjudicating each claim, the Board has considered the veteran's testimony and his written and reported assertions; however, none of this evidence provides a basis for allowance of the denied claims. As indicated above, the denial of his claims turns on the medical matters of diagnosis and/or a nexus to service- matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran is not shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter. See, e.g., Bostain v. West , 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992)). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, none of the lay assertions in this regard have any probative value. For all the foregoing reasons, the veteran's claims for service connection for osteoarthritis of the left knee and a claimed eye disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent evidence supports any of the claims herein decided, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Higher Ratings for Hearing Loss Initially, the Board notes that on appeal are claims for a higher initial rating and for restoration of a benefit (that is, a 10 percent rating from March 1, 2006). See Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that the record does not indicate, and the appellant does not contend, noncompliance with the procedural requirements for rating reductions. See 38 C.F.R. § 3.105(e) (2007). Therefore, the Board will first address whether a higher initial rating is warranted and then will focus on the propriety of the reduction. In written statements and during his hearing testimony, the veteran stated that he is a telemarketer and has problems hearing voices over the phone; and that his hearing loss makes conversational communication difficult at close range and more so at longer ranges, forcing him to read lips. A. Higher Initial Rating Disability evaluations are determined by comparing a veteran's symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for hearing impairment 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. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated, as follows: (a) When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2007). In this case, the record does not reveal pure tone thresholds meeting the definition of an exceptional pattern of hearing impairment for either ear under 38 C.F.R. § 4.86. On his January 1969 separation examination report, the examiner noted that the veteran had bilateral high and low frequency hearing loss. Speech discrimination testing was not performed. Audiometric findings at that time were reported as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 20 55 45 45 42 LEFT 25 30 30 40 32 A September 2004 VA audiological evaluation revealed bilateral high frequency sensorineural hearing loss, but the veteran's word discrimination was found to be moderately impaired. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 40 50 70 65 56 LEFT 40 55 60 60 54 Speech audiometry revealed speech recognition ability of 88 in the right ear and 84 in the left ear. A September 2005 VA audiological evaluation again revealed bilateral high frequency sensorineural hearing loss and moderately impaired word discrimination. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 40 50 70 65 56 LEFT 40 55 60 65 55 Speech audiometry revealed speech recognition ability of 88 in the right ear and 86 in the left ear. VA outpatient treatment records do not include any additional audiometric testing results. Applying the criteria for evaluating hearing loss to the findings of the September 2004 and 2005 VA audiometric evaluations results in designation of no more than Level II impairment in each ear based on application of the reported findings to Tables VI and VII. These findings warrant only a 0 percent (noncompensable) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board in no way discounts the difficulties that the veteran experiences as a result of his bilateral hearing loss. However, it must be emphasized that 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 audiological evaluations of record. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (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. For all the foregoing reasons, the Board finds that the record presents no basis for assignment of a rating in excess of 10 percent prior to March 1, 2006 and a compensable rating for bilateral hearing loss thereafter. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, given the method of deriving ratings for hearing loss, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. B. Propriety of Reduction Except in the case of CUE, Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. When an RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344 (2007); see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Board notes that the provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern reductions of rating in effect for five or more years, do not apply in this case because the 10 percent rating for the veteran's service-connected bilateral hearing loss was in effect for less than three years. As regards disability ratings in effect for less than five years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-282 (1992). As noted in the discussion above, during the entire period under consideration, VA audiometric evaluations result in designation of no more than Level II impairment in each ear based on application of the reported findings to Tables VI and VII. These findings warrant a 0 percent (noncompensable) rating, and no more, under 38 C.F.R. § 4.85, Diagnostic Code 6100. As noted earlier, in an October 2004 rating decision, the RO granted service connection and assigned an initial 10 percent rating for bilateral hearing loss based on the results of the September 2004 VA audiological examination and the application of Table VIa for exceptional pattern of hearing impairment in both ears under 38 C.F.R. § 4.86. Application of Table VIa resulted in Level VI hearing impairment in the right ear and Level III hearing impairment in the left ear, resulting in a 10 percent rating for bilateral hearing loss under Table VII. In January 2005, the veteran filed an NOD with regard to the initial 10 percent rating assigned for bilateral hearing loss. Following the August 2005 hearing and based on its review of the evidence, the RO determined that, in assigning the initial 10 percent rating for the veteran's bilateral hearing loss, the RO had mistakenly used Table VIa for exceptional pattern of hearing impairment in both ears, instead of using Table VI. The September 2004 VA examiner did not certify that use of the speech discrimination test was not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. and audiometric results did not reflect an exception pattern of hearing impairment, therefore Table VIa should not have been used to derive the initially assigned disability rating. Thus, the RO found that the October 2004 rating action contained CUE as the criteria for using Table VIa to compute the disability rating was not met. After recalculating the audiometric results, the RO found as depicted above that designation of no more than Level II hearing impairment in each ear based on application of the reported findings to Tables VI and VII, warranted no more than a noncompensable evaluation. As a consequence, in a September 2005 rating decision, the RO determined that the October 2004 rating decision was clearly and unmistakably erroneous in assigning a 10 percent rating for bilateral hearing loss and that the evidence showed that the veteran's hearing loss warranted a noncompensable evaluation; and, therefore, it proposed to reduce the rating for bilateral hearing loss from 10 percent to 0 percent, based on the September 2004 VA audiometric testing results. Following, the receipt of the veteran's substantive appeal later in September 2005 and his continued disagreement with the initial 10 percent rating and the proposed reduction in the disability rating for bilateral hearing loss, the veteran was re-examined. In November 2005, the RO issued a rating decision reducing the rating for bilateral hearing loss from 10 percent to 0 percent, to be effective March 1, 2006. Given the results shown in September 2004 and September 2005 -- the only valid evidence demonstrating the severity of the veteran's hearing impairment during the time period in question -- the RO appropriately determined that no more than a noncompensable (0 percent) rating for bilateral hearing loss was assignable and that the initially assigned 10 percent rating was the product of CUE. 38 C.F.R. § 3.105(a). The Board (like the RO) has no discretion in this matter and must predicate its determination on the basis of the results of the audiological studies of record. See Lendenmann, 3 Vet. App. at 349. Accordingly, the Board concludes that the reduction in rating from 10 percent to 0 percent for bilateral hearing loss was appropriate, and that the criteria for restoration of the 10 percent rating, from March 1, 2006, are not met. IV. Pension Benefits Essentially, pension is a monthly or other periodic payment made by VA to a veteran because of service, age, or nonservice-connected disability, or to a surviving spouse or child of a veteran because of the nonservice-connected death of the veteran. The amount of pension actually received is the difference between the recipient's countable income and the maximum annual rate permitted by VA given the recipient's circumstances. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation given the recipient's circumstances as set forth in the legislation. See generally 38 U.S.C.A. §§ 101, 1501 et seq. Nonservice-connected pension is a benefit payable by VA to a veteran of a period of war because of permanent and total disability. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the veteran's annual family countable income from the maximum annual pension rate applicable to the veteran's circumstances. The maximum annual pension rate is adjusted from year to year. The maximum annual rate of improved pension for a single veteran with no dependents was $9,894, effective from December 1, 2003; $ 10,162, effective from December 1, 2004; $10,579, effective from December 1, 2005; and $10,929, effective from December 1, 2006. See 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23; VA Adjudication Procedures Manual M21-1, Part I, Appendix B. In determining the veteran's annual countable income, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. See 38 U.S.C.A. § 501 (West 2002); 38 C.F.R. §§ 3.271, 3.272. Recurring income means income which is received or anticipated in equal amounts, and at regular intervals, and which will continue throughout an entire 12-month annualization period. See 38 C.F.R. § 3.271(a)(1). Whenever there is a change in the maximum annual pension rate, or in the veteran's family income, the monthly rate of pension payable shall be adjusted effective the date of change. See 38 U.S.C.A. § 501; 38 C.F.R. § 3.273. On his December 2003 application form, the veteran reported that he last worked full time in December 2002 and was then currently working part-time in retail sales. Subsequently, on a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the veteran indicated that, as of January 12, 2004, he had been employed as a telemarketer and worked 8-hour days, generally 32 to 38 hours a week. He indicated that his last nine salary checks totaled $3,320. On that same form, and in an accompanying attachment, his employer indicated that he was receiving about $390 weekly. During his personal hearing, the veteran reported that he was currently working full time as a telemarketer. The basic facts in this case are not in dispute. The veteran's annual countable income, as reported by him, is over $19,000. This amount of annual income clearly exceeds the maximum annual pension rate for a single veteran with no dependents. As noted earlier, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. See 38 U.S.C.A. § 1503; 38 C.F.R. §§ 3.271, 3.272. As noted, the veteran's annual countable income consists of his salary as a telemarketer and exceeds the applicable statutory and regulatory limits for a single veteran with no dependents. Hence, pursuant to the governing legal authority, he cannot meet the basic income eligibility requirement to establish entitlement to nonservice-connected pension benefits. Where, as here, the law, and not the evidence, is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board acknowledges that the RO's denial of the veteran's pension claim was premised on a different basis -- a finding that the evidence failed to demonstrate that he was unable to secure or follow a substantially gainful occupation as the result of disability -- not the fact that he is ineligible because his income exceeds the statutory and regulatory limits. However, under the circumstances presented here, the Board finds that a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to the requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis, 6 Vet. App. at 430 (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The veteran is advised that should his income change in the future or if he should incur significant out-of-pocket medical expenses, he may reapply for pension and his potential entitlement will be considered in light of the facts then of record. At this time, however, the veteran does not meet the eligibility requirements for pension benefits. ORDER Service connection for osteoarthritis of the left knee is denied. Service connection for an eye disability, claimed as eye sensitivity and pain, is denied. An initial rating in excess of 10 percent for bilateral hearing loss from December 3, 2003 through February 28, 2006, is denied. Restoration of an initial 10 percent rating for bilateral hearing loss, from March 1, 2006, is denied. The claim of entitlement to nonservice-connected pension benefits is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs