Citation Nr: 0811084 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-19 121 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas 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 Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to April 1970, April 1973 to May 1978 and from November 1979 to January 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2006 RO decision. This case was remanded by the Board in October 2007 for a Travel Board hearing. In January 2008, the veteran testified in a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. The Board also received additional medical evidence from the veteran at the January 2008 hearing consisting of a new VA audiological examination. The new evidence was accompanied by a waiver of the veteran's right to initial consideration of the new evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c) (2007). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence shows that the veteran's service-connected hearing loss disability is, at its most severe, manifested by level VI hearing acuity in the right ear and level VII hearing acuity in the left ear. CONCLUSION OF LAW The criteria for the assignment of a 30 percent evaluation for bilateral hearing loss have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in October 2005 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, 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 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, the VCAA duty to notify has not been satisfied because the October 2005 letter did not include notice that the veteran could submit medical or lay evidence to demonstrate the effect that worsening of his hearing loss had on his daily life. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("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.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05-0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the veteran had actual knowledge of what was necessary to substantiate his claim. The veteran testified in the January 2008 hearing that his hearing loss affected his daily life. He indicated that is was difficult to hear conversations and depict words in a group setting. He also testified that he could not hear his wife or other people while there was background noise, such as a television. He also testified that when someone was standing behind him, it was difficulty to discern the words that were spoken. He also submitted additional private hearing examinations in support of his claim. The veteran also testified that the hearing aids increased volume, but not clarity. He testified that he could not drive with the radio on and hear other cars around him. The Board finds that based on the veteran's statements and his submission of additional evidence of the severity of his hearing loss, he had actual knowledge of what was required to substantiate his claim. As such, the VCAA notice error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, private medical records and VA medical records. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The Board further finds that the RO complied with its October 2007 Remand. Stegall v. West, 11 Vet. App. 268 (1998). The appellant was afforded a VA medical examination in October 2006 and November 2007. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 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. Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran contends that he is entitled to an increased evaluation for his service-connected bilateral hearing loss which is currently evaluated as 0 percent disabling. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86. The test results for the veteran's left ear meet the numerical criteria for such a rating, however, a higher rating results when the veteran's hearing is evaluated under 38 C.F.R. § 4.85. As such, his bilateral hearing loss is to be rated by the method set forth in 38 C.F.R. § 4.85. In an October 2006 VA Compensation and Pension Audiological Examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 60 80 80 LEFT 45 45 65 80 80 The average puretone threshold in the veteran's right ear was 66.3 decibels. The average puretone threshold in the veteran's left ear was 67.5 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 86 percent in the left ear. Evaluating each ear separately, these findings produce hearing acuity level II in the right ear and level III in the left ear under Table VI of 38 C.F.R. § 4.85, respectfully. Such results warrant a 0 percent rating when the auditory acuity levels are entered in Table VII of 38 C.F.R. § 4.85. In a November 2007 VA Audiological Examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 55 75 75 LEFT 50 55 75 85 80 The average puretone threshold in the veteran's right ear was 62.5 decibels. The average puretone threshold in the veteran's left ear was 72.5 decibels. Speech audiometry revealed speech recognition ability of 72 percent at 90 dBHL, 72 percent at 95 dBHL and 64 percent at 100 dBHL in the right ear. Speech audiometry revealed speech recognition ability of 66 percent at 90 dBHL, 68 percent at 95 dBHL and 72 percent at 100 dBHL in the left ear. Utilizing the worst speech recognition scores and applying the rating criteria, these findings produce hearing acuity level VI in the right ear and level VII in the left ear under Table VI of 38 C.F.R. § 4.85, respectfully. Such results warrant a 30 percent rating when the auditory acuity levels are entered in Table VII of 38 C.F.R. § 4.85. As such, the Board finds pursuant to the audiometric results from this examination, the veteran is as likely as not entitled to a 30 percent rating for his bilateral hearing loss disability. The veteran also provided private audiological evaluations dated in October 2006. However, the audiological reports contain uninterrupted results of his pure tone threshold evaluation. The Board notes that it is precluded from interpreting pure tone threshold results in order to determine the severity of the veteran's current hearing loss disability. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (the Board may not interpret graphical representations of audiometric data). While the results of the private evaluations provided some of the relevant data required by the VA, the exams are also not usable for VA purposes because there is no indication that the Maryland CNC test was used for speech discrimination testing in accordance with 38 C.F.R. § 4.85. The Board further notes that to the extent that the veteran's service-connected disability affects his employment, such has been contemplated in the assignment of the current 30 percent schedular evaluation. The evidence does not reflect that the disability at issue caused marked interference with employment, or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, referral to the RO for consideration of the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. (CONTINUED ON NEXT PAGE) ORDER A 30 percent evaluation for bilateral hearing loss is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs