Citation Nr: 0811668 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-01 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's claim for a compensable rating for bilateral hearing loss. FINDINGS OF FACT The veteran's service-connected hearing loss is manifested by an auditory acuity level of no more than level II bilaterally. CONCLUSIONS OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, DC 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2007). The veteran's bilateral hearing loss is rated according to a mechanical application of the rating schedule, using 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 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 (2007). The current rating criteria include an alternate method of rating exceptional patterns of hearing, as defined in 38 C.F.R. § 4.86 (2007). This alternative method provides 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 of 38 C.F.R. § 4.85, whichever results in the higher numeral. Each ear will be evaluated separately. In this case, however, the veteran's test results do not meet the numerical criteria for such a rating based on an exceptional pattern of hearing. Furthermore, no audiologist has certified that the speech discrimination test is no appropriate because of language difficulties, speech discrimination scores, or for any other reason, so the use of Table VIa is not warranted. 38 C.F.R. § 4.85(c) (2007). The evidence of record consists of a VA audiological examination dated in April 2004 and a private audiological examination dated in October 2004. On VA examination in April 2004, the veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 70 70 LEFT 10 10 25 65 65 The averages were 41 in both ears. Speech recognition ability under the Maryland CNC speech recognition test was 90 percent in the right ear and 88 percent in the left ear. With respect to the veteran's right ear, applicable law provides that an average pure tone threshold of 41 decibels along with speech discrimination of 90 percent warrants a designation of Roman Numeral II under Table VI of 38 C.F.R. § 4.85. With respect to his left ear, the average pure tone threshold of 41 decibels along with speech discrimination of 88 percent also warrants a designation of Roman Numeral II under Table VI of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where both ears are at Roman II, the appropriate rating is zero percent under DC 6100. On private examination in October 2004, the veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 75 70 LEFT 20 20 30 70 65 The averages were 44 in the right ear and 46 in the left ear. Speech recognition ability was assessed as 90 percent in the right ear and 92 percent in the left ear. However, the examination report does not show that the examiner used the Maryland CNC speech recognition test as required by 38 C.F.R. § 4.85(a). Thus, the results of the examination cannot be evaluated under the VA rating criteria for bilateral hearing loss. However, the Board has considered applying the criteria of 38 C.F.R. § 4.85(c) to these findings. To do so yields a result of Roman Numeral II in each ear, which would warrant the assignment of a noncompensable rating. 38 C.F.R. § 4.85 (2007). The results of the veteran's April 2004 and October 2004 audiometric examinations are the only evidence of record that are valid and complete for rating purposes. The veteran has not contended that his hearing loss has worsened since the date of his last audiometric examination, nor has he requested a new examination. Thus, the Board finds that the veteran's disability does not warrant a compensable rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board is sympathetic to the veteran's contentions regarding the severity of his service-connected bilateral hearing loss. However, the results from the audiometric examinations, as compared to the rating criteria, do not warrant a compensable rating for hearing loss. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating for bilateral hearing loss, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in March 2004 and a rating decision in June 2004. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the December 2004 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER A compensable rating for bilateral hearing loss is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs