Citation Nr: 0812631 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-13 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from August 1960 until May 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. It is noted that veteran requested a BVA hearing in his April 2006 substantive appeal. However, in an October 2007 communication he withdrew his request. FINDING OF FACT Throughout the rating period on appeal, the veteran's bilateral hearing loss was manifested by no more than Level V in right ear, and no more than Level I in left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.85, 4.86, Diagnostic Code (DC) 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, an appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates "staged" ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Throughout the rating period on appeal, the veteran is assigned a noncompensable evaluation for bilateral hearing loss. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule for hearing loss establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The horizontal lines in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the horizontal column appropriate for the numeric designation for the ear having the better hearing acuity and the vertical row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. 38 C.F.R. §§ 4.85(b), 4.87 (2007). Additionally, under 38 C.F.R. § 4.86(a), when the pure tone 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. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. In the present case, the veteran underwent a VA audiological examination in December 2004. This examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 50 65 65 70 LEFT 40 45 50 45 On the basis of the findings shown above, the veteran's puretone average for the right ear was recorded as 63 decibels. His puretone average for the left ear was recorded as 45 decibels. Speech recognition was 86 percent for the right ear at 80 decibels, 82 percent at 85 decibels, 76 percent at 90 decibels and 94 percent for the left ear at 75 decibels. A subsequent VA audiological examination in June 2006 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 70 70 LEFT 40 50 55 50 On the basis of the evidence shown above, the veteran's puretone average for the right ear was recorded as 66 decibels. His puretone average for the left ear was recorded as 49 decibels. Speech recognition was 88 percent for the right ear and 96 percent for the left ear. The audiometric findings revealed in June 2006 reflect a greater degree of hearing loss than the 2004 findings, as indicated by the higher puretone averages for each ear. However, even considering the June 2006 audiometric results, an increased evaluation is not warranted here. Applying the findings of the June 2006 VA examination to the rating criteria for hearing impairment, the Board finds that the criteria for an initial compensable evaluation for bilateral hearing loss have not been met. Considering that the veteran's right ear manifests an average puretone threshold of 66 decibels, with a 88 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss to be Level III impairment. However, because his right ear shows an exceptional pattern of hearing impairment under Table VIA, it can be categorized as a Level V hearing loss. 38 C.F.R. 4.86(a) (2007). Moreover, considering that the veteran's left ear manifests an average pure tone threshold of 49 decibels, and 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows the veteran's left ear hearing loss to be that of Level I impairment. Applying these results to Table VII, a noncompensable evaluation is assigned. The Board is limited in evaluating hearing loss to the mechanical application of the rating schedule under the specified testing methods. For example, any impact of the hearing loss on the veteran's daily life cannot be accounted for outside the rating tables of 38 C.F.R. § 4.85. The noncompensable evaluation currently assigned for his bilateral hearing loss accurately reflects his disability picture as contemplated under the VA rating criteria throughout the rating period on appeal. In sum, there is no support for a compensable evaluation for bilateral hearing loss for any portion of the rating period on appeal. Without an approximate balance of positive and negative evidence that would give rise to a reasonable doubt in favor of the appellant receiving an increased rating, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's bilateral hearing loss claim arises 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). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and in December 2004 and June 2006, he was afforded formal VA examinations. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). ORDER An initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs