Citation Nr: 0810699 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-10 816A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 30 percent for the service-connected bilateral sensorineural hearing loss. ATTORNEY FOR THE BOARD M. Peters, Legal Intern INTRODUCTION The veteran had active service from January 1943 to April 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from the RO. FINDING OF FACT The service-connected bilateral sensorineural hearing loss currently is shown to be manifested by Level VII hearing acuity in the veteran's right ear and a Level V hearing acuity on the left. CONCLUSION OF LAW The criteria for the assignment of an initial rating in excess of 30 percent for the service-connected bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85 - 4.87 including Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2005). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein. In July 2004, the RO sent the veteran a letter in which he was informed of the requirements needed to establish entitlement to a higher rating. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims file. In this letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his possession that pertains to a claim. The Board notes that the veteran was informed in a VA letter dated in June 2007 about relevant information on disability ratings and effective dates in the event that his claim was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran was also told in the June 2007 letter that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The veteran was told about the specific requirements for a higher rating for hearing loss in the January 2006 Statement of the Case. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2007). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such omission is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law and Regulations In cases where the evaluation of hearing loss is at issue, an examination 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is "V" for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. 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. 38 C.F.R. § 4.85(e), Diagnostic Code 6100. Analysis Initially, specific provisions are in effect for "unusual patterns of hearing impairment," specifically cases where the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more, or where the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Board notes that the veteran's examinations in August 2004 and December 2005 showed an "unusual pattern of hearing impairment" and therefore, both Tables VII and VIIa will be used in evaluation of those examinations, and the higher Roman Numeral will be taken. See 38 C.F.R. § 4.86. The veteran is currently assigned a 30 percent evaluation for his service-connected bilateral sensorineural hearing loss. In the VA audiological evaluation conducted in August 2004 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 80 105 LEFT 40 65 60 65 The average pure tone thresholds (using the four 1000 to 4000 frequencies) were 78 decibels in the right ear and 58 decibels in the left ear. Speech audiometry testing revealed speech recognition ability of 66 percent in the right ear and 74 percent in the left ear. Given these results, the Roman numerals assigned for purposes of evaluation in Table VII are VII for the right ear and V for the left ear. See 38 C.F.R. § 4.85, Table VI, Table VIA Applying these findings to 38 C.F.R. § 4.85, Table VII of the Schedule results in a 30 percent evaluation for hearing loss under Diagnostic Code 6100. The veteran had another VA audiological evaluation in December 2005, in which the results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 70 90 105 LEFT 60 70 70 75 The average pure tone thresholds (using the four 1000 to 4000 frequencies) were 81 decibels in the right ear and 69 decibels in the left ear. Speech audiometry testing revealed speech recognition ability of 60 percent in the right ear and 80 percent in the left ear. Given these results, the Roman numerals assigned for purposes of evaluation in Table VII are VII for the right ear and V for the left ear. See 38 C.F.R. § 4.85, Table VI, Table VIa. Applying these findings to 38 C.F.R. § 4.85, Table VII yields a result of 30 percent for hearing loss under Diagnostic Code 6100. The record also contains VA clinical reports that include examinations in July 2005 and March 2007 performed for treatment purposes; the hearing results of both examinations are essentially the same as those recorded by the December 2005 examination. The March 2007 examination findings were noted to show no change in puretone findings from the 2005 examination and better discrimination ability in the right ear. Because the medical evidence of record relied on by the Board does not show an increase in symptomatology that would fulfill the requirements for an evaluation in excess of 30 percent under the applicable rating criteria involving the service-connected bilateral sensorineural hearing loss during the entire appeal period, the Board concludes that a staged rating is not for application in this case. See Fenderson, 12 Vet. App. 119 (1999). ORDER An initial compensable rating in excess 30 percent for the service-connected bilateral sensorineural hearing loss is denied. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs