Citation Nr: 0811596 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-31 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman INTRODUCTION The veteran had active service from April 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in August 2007, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. The veteran testified in May 2007 before the undersigned Veterans Law Judge at a Travel Board hearing at the RO; a transcript is of record. FINDINGS OF FACT 1. Currently, audiometric testing shows an average 70 decibel loss, with a speech recognition score of 48 percent, in the left ear (level VIII). 2. At no time has the veteran's hearing loss been shown to produce an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an initial compensable evaluation for left ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.85, 4.86 (2007), Diagnostic Code (DC) 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a veteran before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In August 2005, the RO sent the veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. The Board finds that the content of the letter provided to the veteran complied with requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the October 2005 rating decision, July 2006 SOC, and October 2007 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional 60-day periods to submit more evidence. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. For an increased-compensation claim, 38 U.S.C.A. § 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, 22 Vet. App. 37 (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. 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, 22 Vet. App. at 43-44. The notifications to the veteran in this case were entirely adequate to inform him, or any reasonable person for that matter, of what was required, and that he needed to provide evidence with regard to how his disabilities affect him in his everyday, daily life, and he testified before he undersigned as to the effect of his hearing disability on his family life and at his place of employment. There is no prejudicial error shown in this regard. In addition to the foregoing harmless-error analysis, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in a March 2006 letter that the RO sent to the veteran, as well as in the July 2006 SOC. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Factual Background At a private audiological evaluation in August 2002, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 80 90 90 Pure tone thresholds averaged 69 in the left ear. On the audiological evaluation at the VA examination in October 2005, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 25 80 90 85 Speech audiometry revealed speech recognition ability of 44 percent in the left ear. Pure tone thresholds averaged 70 in the left ear. The veteran reported difficulty with understanding spoken voice and hearing when not looking at the speaker or when there is background noise. On the audiological evaluation at the VA examination in October 2007, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 35 80 85 85 Speech audiometry revealed speech recognition ability of 48 percent in the left ear. Pure tone thresholds averaged 70 in the left ear. III. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when 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, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. When impaired hearing is service connected in one ear only, the non- service-connected ear will be assigned a designation of level I from Table VII. 38 C.F.R. § 4.85(f). The provisions of section 4.86 address exceptional patterns of hearing loss which, are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86 (2007). The results of the August 2002 audiogram show an average pure tone threshold of 69 decibels in the left ear. The veteran's speech discrimination ability was not indicated. He had a decibel loss pure tone threshold of 15 at 1000 Hz and 80 decibels at 2000 Hz, and therefore he had an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. This permits Table VIa to be used even though the examiner did not certify that the use of the speech discrimination test was not appropriate because of language difficulties or inconsistent speech discrimination scores. See 38 C.F.R. §§ 4.85(c), 4.86(b). Table VIa indicates a numeric designation of level V for the left ear, which is elevated to level VI because of the exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86(b). The veteran's right ear has a numerical designation of I because it does not have service connected hearing loss. See 38 C.F.R. § 4.85(f). The point of intersection on Table VII reflects that the level of hearing loss is consistent with a noncompensable evaluation. The results of the October 2005 audiogram show an average pure tone threshold of 70 decibels in the left ear with speech discrimination ability of 44 percent. Table VI indicates numeric designation of VIII for the left ear. The veteran had a decibel loss pure tone threshold of 25 at 1000 Hz and 80 decibels at 2000 Hz. Therefore, he had an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. His numeric designation under Table VI is thus elevated to IX. See 38 C.F.R. § 4.86(b). The point of intersection on Table VII reflects that the level of hearing loss is consistent with a noncompensable evaluation. The results of the October 2007 audiogram show an average pure tone threshold of 70 decibels in the left ear with speech discrimination ability of 48 percent. Table VI indicates numeric designation of VIII for the left ear. The point of intersection on Table VII reflects that the level of hearing loss is consistent with a noncompensable evaluation. Exceptional patterns of hearing impairment were not indicated. The fact that the veteran's hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating. To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. That level of disability has not been demonstrated in the present case. Finally, in light of the holding in Fenderson, supra, the Board has considered whether the veteran is entitled to a "staged" rating for his service-connected bilateral hearing loss disability, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since July 8, 2004, one year before he filed his claim for an increased rating, has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Under the provisions of 38 C.F.R. § 3.321, in exceptional cases an extraschedular evaluation can be provided in the interest of justice. The governing norm in such a case is that the case presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular Rating Schedule standards. We recognize that, as he testified at his Travel Board hearing, the veteran does experience difficulties hearing certain types of speech at home and at work, but in light of his documented test results, and the lack of a showing of marked interference in the work setting, the Board finds that circumstances warranting referral of the case to the Director of the Compensation and Pension Service or the Under Secretary for Benefits do not exist in the present case. The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a compensable evaluation for left ear hearing loss is denied ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs