Citation Nr: 0811995 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-26 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The appellant in this case is a veteran who served on active duty from July 1977 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in September 2007 for further development. FINDING OF FACT The veteran's hearing acuity is Level I in the right ear and Level II in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for the veteran's service-connected hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Code 6100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in August 2003), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the appellant was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet.App. 473, 491 (2006). Nevertheless, subsequent VCAA letters in August 2006 and October 2007 were sent to the veteran and were followed by readjudication as evidenced by subsequent supplemental statements of the case. At this point the Board acknowledges the decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) which noted that 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. The Court further indicated, among other things, that 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), VA must provide at least general notice of that requirement to the claimant. However, the Board believes that the nature of the present appeal is somewhat different from the situation addressed in Vasquez-Flores. The present appeal involves the issue of a higher initial rating, not a claim for an increased rating. A review of the record shows that the RO, in connection with the veteran's original service connection claim provided the veteran with adequate VCAA notice in an August 2003 letter prior to the March 2004 adjudication of the claim which granted service connection. In Dingess v. Nicholson, 19 Vet.App. 473, 490-491 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. 5103(a) (West 2002), notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Also see Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet.App. 112, 116-117 (2007). In line with the reasoning set forth in these judicial decisions, it appears that the notice requirements addressed by the Court in Vasquez-Flores, supra, do not apply to initial rating claims such as the one now on appeal to the Board. VA has obtained service medical records, assisted the appellant in obtaining evidence, afforded the veteran physical examinations in November 2003, December 2006, and November 2007, obtained medical opinions as to severity of disability, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Ratings The present appeal involves the veteran's claim that the severity of his service-connected hearing loss warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). The veteran's service-connected hearing loss had been rated by the RO under the provisions of Diagnostic Code 6100. Evaluations for bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from the veteran's hearing loss, the rating schedule establishes 11 auditory acuity levels, designated from level I for slightly impaired hearing acuity through level XI for profound deafness. Further, "disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria at 38 C.F.R. § 4.86 addresses exceptional patterns of hearing loss. The exceptional patterns addressed in that section are when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. The veteran filed his claim for service connection in August 2003. The relevant evidence includes reports of VA audiological examinations dated November 2003, December 2006, and November 2007. Pure thresholds levels at 1000 hertz, 2000 hertz, 3000 hertz, and 4000 hertz and speech recognition scores were measured as follows: Right Ear Left Ear 1k 2k 3k 4k Avg Sp 1k 2k 3k 4k Avg Sp November 2003 30 35 45 45 39 100 25 40 45 45 39 92 December 2006 X X X X X 96 X X X X X 100 November 2007 35 40 50 55 45 92 40 40 55 60 49 88 The December 2006 examiner stated that the examination was not adequate for rating purposes. In the right ear, the veteran had poor speech recognition threshold/puretone average agreement. He had excellent speech discrimination (CNC score of 96) at normal conversational levels. In the left ear, the examiner stated that no consistent puretone thresholds could be objectively obtained from the veteran, even with repeated instruction during the test procedure. The veteran did have excellent speech discrimination (CNC score of 100) at presentation level at his best volunteered puretone thresholds. Applying the criteria found in 38 C.F.R. § 4.87 at Table VI to the veteran's November 2003 audiological examination; the results yield a numerical designation of I for the right ear and a numerical designation of I for the left ear. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation under Diagnostic Code 6100. Applying the criteria found in 38 C.F.R. § 4.87 at Table VI to the veteran's November 2007 audiological examination; the results yield a numerical designation of I for the right ear and a numerical designation of II for the left ear. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation under Diagnostic Code 6100. Accordingly, the Board can only conclude that the veteran's bilateral hearing loss was properly assigned a noncompensable evaluation under Diagnostic Code 6100. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his service connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs