Citation Nr: 0810651 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-42 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased (compensable) disability rating for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from March 1952 to February 1956. This case comes before the Board of Veterans' Appeals (the Board) on appeal of an October 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which, in part, granted service connection for bilateral hearing loss and assigned a noncompensable (zero percent) disability rating. The veteran filed a notice of disagreement in regards to the October 2003 rating decision. He requested review by a decision review officer (DRO). The DRO conducted a de novo review of the claim and confirmed the RO's findings in a November 2004 statement of the case (SOC). The veteran perfected his appeal with the submission of his substantive appeal (VA Form 9) in November 2004. The veteran subsequently submitted evidence directly to the Board. In March 2008, the veteran's representative submitted a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2007). FINDINGS OF FACT 1. Prior to January 30, 2007, the medical evidence of record shows that the veteran's service-connected bilateral hearing loss was manifested by no more than level III hearing impairment in the right ear and level III hearing impairment in the left ear. 2. Beginning January 30, 2007, the medical evidence of record shows that the veteran's bilateral hearing loss was manifested by no more than level IV hearing impairment in the right ear and level III hearing impairment in the left ear. CONCLUSIONS OF LAW 1. Prior to January 30, 2007, the criteria for a compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.85, Diagnostic Code 6100, 4.86 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 2. The criteria for a 10 percent disability rating for service-connected bilateral hearing loss have been met effective January 30, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.85, Diagnostic Code 6100, 4.86 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks a compensable disability rating for his service-connected bilateral hearing loss. In the interest of clarity, the Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. VCAA notice letters were sent to the veteran regarding his claim in August 2003 and September 2003. The letters appear to be adequate. The Board need not, however, discuss in detail the sufficiency of the VCAA notice letters or VA's development of the claim in light of the fact that the Board is awarding the benefit sought on appeal. Accordingly, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the claim. Cf. 38 C.F.R. § 20.1102 (2007). The veteran has not been provided notice regarding degree of disability and effective date as required by the recent decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, as discussed in detail below, the Board is granting the veteran's claim. The Board is confident that if required the veteran will be provided with any additional appropriate notice under Dingess. Accordingly, the Board will proceed to a decision. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Evaluating hearing loss In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2007). Effective June 10, 1999, regulatory changes were made to the schedule for rating disabilities pertaining to diseases of the ear, including the criteria for evaluating hearing loss. The Board notes that the veteran's initial claim for service connection for bilateral hearing loss was received in July 2003, after the amended regulations became effective. Thus, the veteran's claim will be evaluated in accordance with the amended regulations only. See VAOPGCPREC 3-2000 (2000). In this regard, the Board notes that the method described above using Tables VI and VII was not changed. However, pertinent changes were made to 38 C.F.R. § 4.86, regarding cases of exceptional hearing loss. The provisions of 38 C.F.R. § 4.86(a) now provide that when the puretone 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1,000 hertz, and 70 dB or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Schedular rating As indicated above, the resolution of this issue involves determining the level of acuity in each ear. On VA audiological evaluation in October 2003, puretone thresholds were as follows: Hertz (Hz) 500 1000 2000 3000 4000 Average Left (dB) 20 30 65 75 75 61 Right (dB) 25 30 65 70 75 60 Speech audiometry revealed speech recognition ability of 84 percent in both the right and left ears. Review of the results of the October 2003 VA audiology examinations shows that application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 warrants a noncompensable disability rating. That is, the combination of level III in the right ear with level III in the left ear results in a 10 percent disability rating. On VA audiological evaluation in January 2007, puretone thresholds were as follows: Hertz (Hz) 500 1000 2000 3000 4000 Average Left (dB) 30 40 70 80 80 68 Right (dB) 30 35 70 70 75 63 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear. Review of the results of the VA audiology examinations shows that application of the levels of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 warrants a 10 percent disability rating. That is, the combination of level IV in the right ear (the veteran's more severe right ear average and more severe speech recognition ability from the January 2007 VA audiological examination) with level III in the left ear (the combination of the veteran's more severe left ear average from the January 2007 VA audiological examination and more severe speech recognition ability of 84 percent from the October 2003 VA audiological examination) results in a 10 percent disability rating. The Board notes that these test results do not require consideration of exceptional patterns of hearing impairment under subsections (a) or (b) of 38 C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz frequencies, or 30 or less at the 1000 Hertz frequency and 70 or greater at the 2000 Hertz frequency]. In this case, the right and left ears both show thresholds of 55 or greater in only three of the four Hertz frequencies. 38 C.F.R. § 4.86(a) thus is not applicable. In addition, there is no evidence of 30 or less at the 1000 Hertz frequency or 70 or greater at the 2000 Hertz frequency in either ear, so (b) is also inapplicable. Accordingly, for reasons stated above, the Board finds that the veteran is entitled to a 10 percent rating for his service-connected bilateral hearing loss. Fenderson considerations In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where (as here) an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In the instant case, the RO assigned a noncompensable disability rating for service-connected bilateral hearing loss effective July 22, 2003, the day the veteran filed his claim. The record indicates that at the January 30, 2007 VA examination the veteran demonstrated hearing loss symptomatology which met the criteria for an increased disability rating of 10 percent. The only previous pertinent evidence was the report of the October 2003 VA examination, which indicated that at that time the veteran's hearing loss was not severe enough to warrant a compensable disability rating under 38 C.F.R. § 4.85. Accordingly, the Board finds that the 10 percent disability rating should be assigned from January 30, 2007 and no earlier, as it was on that date that it was factually ascertainable that an increase in disability occurred. See 38 C.F.R. § 3.400(o) (2007). Extraschedular rating consideration The RO has not at any time adjudicated the matter of the veteran's entitlement to an extraschedular rating, and the veteran has never raised the matter himself. Moreover, the veteran has not identified any factors which may be considered to be exceptional or unusual with respect to the service-connected bilateral hearing loss. Accordingly, the matter of the veteran's potential entitlement to an extraschedular rating will not be considered by the Board. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) [the Board cannot make a determination as to an extraschedular evaluation in the first instance]; see also Bernard v. Brown, 4 Vet. App. 384 (1993). Conclusion In summary, for the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against a showing that the veteran's service-connected bilateral hearing loss warrants an increased rating from July 22, 2003 to January 30, 2007. A 10 percent disability rating is assigned for service-connected bilateral hearing loss from January 30, 2007. To that extent, the appeal is allowed. ORDER Entitlement to an increased evaluation, 10 percent, for service-connected bilateral hearing loss is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs