Citation Nr: 0811742 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 07-27 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 10 percent for hearing loss. ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from January 1943 to February 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2007 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO) which granted service connection for hearing loss and assigned a 10 percent initial disability rating FINDINGS OF FACT 1. The average pure tone hearing thresholds on authorized audiological evaluation in August 2007 was 83 decibels in the right ear and 70 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 68 percent in the right ear and 64 percent in the left ear. An exceptional pattern of hearing loss was not shown. 2. The average pure tone thresholds and speech recognition scores for the right ear demonstrated during the VA examination correspond to category VII, and the scores for the left ear correspond to category VII. CONCLUSION OF LAW The criteria for a 40 percent initial disability rating for bilateral hearing are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86 Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. According to the United States Court of Appeals for Veterans Claims (hereinafter "Court"), when an appeal ensues from the veteran's disagreement with the rating assigned in connection with his original grant of service connection, the potential for the assignment of separate, or "staged," ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the veteran perfected an appeal of the rating assigned for his newly service-connected hearing loss; therefore, his claim is governed by Fenderson and the VA must consider the applicability of staged ratings. Disability evaluations for hearing impairment 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, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. See 38 C.F.R. § 4.85. The results are then analyzed using tables contained in 38 C.F.R. § 4.85, Diagnostic Code 6100. "Puretone threshold average,'' as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII. For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) 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. (b) When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Although there are VA treatment records which contain findings of audiology testing done for treatment purposes, it is unclear whether those examinations were conducted under the methodology and standards used for rating purposes. The only examination which clearly meets such standards is the report of a VA audiology examination conducted in August 2007. On the authorized audiological evaluation in August 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 60 75 90 105 LEFT 25 35 75 85 85 The average for the right ear was 83 decibels, and the average for the left ear 70 was decibels. Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 64 in the left ear. Under Table VI contained in Diagnostic Code 6100, the average pure tone thresholds and speech recognition scores for the right ear demonstrated during the VA examination correspond to category VII, and the scores for the left ear correspond to category VII. The intersection point for these categories under Table VII shows that the hearing loss corresponds to the levels contemplated for a 40 percent disability rating. An exceptional pattern of hearing loss which would warrant evaluation under 38 C.F.R. § 4.86 is not shown. Accordingly, the Board concludes that the schedular criteria for a 40 percent (but no higher) initial disability rating for bilateral hearing loss are met. The Board further finds that the evidence does not raise a question that a different rating is warranted for any period of time from the veteran's claim to the present time so as to warrant a staged rating based on significant change in the level of disability. Finally, the Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters dated in November 2006 and June 2007 from the RO provided the veteran with an explanation of the type of evidence necessary to substantiate his claim as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter adequately informed the veteran that he should submit any additional evidence that he has in his possession. The veteran's claim arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. The Board also notes that the evidence being considered in this decision includes medical evidence which was not considered by the RO. The Board finds, however, that there is no prejudice to the veteran in the Board considering such evidence without first remanding the case to the RO. In this regard, the Board notes that the evidence includes the August 2007 VA audiology report which forms the basis of the foregoing allowance of a 40 percent rating. In light of the favorable decision in this case, and in light of the fact that the case has been expedited based on the veteran's advanced age, the Board concludes that resolution of the appeal in favor of the veteran at this time is the course of action most favorable to the veteran. In light of the mechanic nature of assignment of rating for hearing loss, there is no possibility that remand to have the RO consider the same evidence would result in a higher rating. The Board concludes, therefore, that the appeal may be adjudicated without remand for further notification or other procedural action. ORDER A 40 percent initial disability rating for hearing loss is granted, subject to the law and regulations applicable to the payment of monetary benefits ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs