Citation Nr: 0812683 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 99-18 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased rating for bilateral hearing loss, rated 10 percent disabling prior to October 19, 2006, and 20 percent disabling from October 19, 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran-appellant served on active duty from October 1968 to October 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of rating actions of the Department of Veterans Affairs (VA), Huntington, West Virginia, Regional Office (RO). The veteran testified before the undersigned in a March 2000 Travel Board hearing. In a May 2001 decision, the Board determined that the criteria for the restoration of a 10 percent disability evaluation assigned for service-connected bilateral high frequency hearing loss had not been met. The veteran appealed the Board's May 2001 decision to the United States Court of Appeals for Veterans Claims (CAVC). In a September 2002 Order, the CAVC granted a Joint Motion to Vacate and Remand, and to Stay Further Proceedings, that had been made by the appellant and the Secretary of VA. This order vacated the May 2001 decision and remanded the matter to the Board for further development and readjudication. The issue on appeal was again before the Board in December 2003, when it was remanded to the RO for additional evidentiary development. The issue on appeal was last before the Board in November 2005 when it was again remanded for additional evidentiary development. The issue on appeal originally included a claim for restoration of a 10 percent rating for the service-connected hearing loss as of October 1, 1999. In August 2007, the RO granted the veteran's claim for restoration of a 10 percent rating for hearing loss effective October 1, 1999. This is considered a complete grant of benefits for the restoration claim. The issue of entitlement to restoration of a 10 percent rating effective as of October 1, 1999 is no longer on appeal. The issue of entitlement to an increased rating for the hearing loss remains in appellate status as the veteran has not been granted the highest disability evaluation available under the pertinent diagnostic codes. The issue on appeal has been changed to reflect this development. FINDINGS OF FACT 1. Prior to October 19, 2006, the veteran's service- connected bilateral hearing loss has been productive of, at the most, Level IV hearing acuity in the right ear and Level IV hearing acuity in the left ear. 2. As of October 19, 2006, the veteran's service-connected bilateral hearing loss has been productive, at most, of Level VI hearing acuity in the right ear and Level V hearing acuity in the left ear. CONCLUSION OF LAW The criteria for entitlement to an increased rating for hearing loss, rated 10 percent disabling prior to October 19, 2006, and 20 percent disabling from October 19, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Additionally, as to timing, VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant, dated in November 2005, that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Moreover, as this case involves claims for increased ratings, additional notice is required under section 5103(a). Such notice must meet the following four-part test: (1) 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; (2) 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 of that worsening 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; (3) 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; (4) 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 v. Peake, 22 Vet. App. 37 (2008). For the following reasons, the Board finds that the elements of the Vazquez-Flores test have either been met or that any error is not prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez- Flores. As such, it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (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. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). As noted above, the RO sent the veteran a letter in November 2005 which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran testified before the undersigned in March 2000 as to how his hearing loss had increased in symptomatology. The Board finds that the notice given and the responses provided by the veteran show that he knew that the evidence needed to show that his hearing loss disability had worsened and what impact that had on his employment and daily life. Actual knowledge can also be established by statements or actions by the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Vazquez-Flores, 22 Vet. App. 37 (2008), citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). In this case, a March 2008 Informal Hearing Presentation specifically argued application of the facts under the pertinent diagnostic codes. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez- Flores. As for the second and third elements, this information was provided to the veteran in the August 2007 supplemental statement of the case (SSOC). The veteran was notified that disability ratings are rated based on VA's Rating Schedule and that the evidence to be considered includes: the nature and symptoms of the condition; the severity and duration of the symptoms; and the impact of the condition and symptoms on employment. He was also notified in that SSOC that disability ratings are assigned ranging from 0 to 100 percent based on the severity of the disability, and that effective dates of increased payments are assigned based either on when a claim is received or when the evidence shows a level of disability that supports a certain rating under VA's schedule. See also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The ratings schedule is the sole mechanism by which a veteran can be rated, excepting only referral for extraschedular consideration and the provisions of special monthly compensation. See 38 C.F.R. Part 4. Neither the Board nor the RO may disregard the schedule or assign ratings apart from those authorized by the Secretary and both must apply the relevant provisions. As discussed below, the pertinent diagnostic code in this case considers information obtained solely from audiometric testing. The veteran underwent VA examinations specifically for the purpose of soliciting this type of information so that his disability could be properly evaluated. Therefore, the Board finds that the second and third elements of Vazquez-Flores notice have been satisfied. As to the fourth element, the September 2006 letter and a November 2007 letter did provide notice of the types of evidence, both medical and lay, including employment records, that could be submitted in support of his claim. This information was additionally provided in the August 2007 SSOC which listed such information in the context of evidence needed that may affect how a disability rating is assigned. The Board finds that the fourth element of Vazquez-Flores is satisfied. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores are met. The Board, therefore, finds that VA has discharged its duty to notify. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In addition, VA has a duty to assist the appellant in the development of the claims. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, pertinent VA examination reports are of record. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service- connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The appellant was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The appellant was afforded VA medical examinations. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state- licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). 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. 38 C.F.R. § 4.86(a). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Factual Background In May 1999, the veteran submitted a statement indicating that his hearing loss had increased in severity. On the authorized audiological evaluation in June 1998, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 70 80 95 95 LEFT 75 80 85 85 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 90 percent in the left ear. On the authorized audiological evaluation in March 1999, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 15 25 40 LEFT 15 25 50 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. On the authorized audiological evaluation in June 2004, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 80 90 100+ LEFT 85 90 100 100+ Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. On the authorized audiological evaluation in October 2004, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 95 95 95 105 LEFT 100 95 100 110 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. On the authorized audiological evaluation in April 2005, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 65 75 LEFT 30 20 60 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. On the authorized audiological evaluation in October 2006, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 65 80 85 LEFT 60 60 75 80 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 84 percent in the left ear. Analysis The Board finds that a rating in excess of 10 percent is not warranted for the service-connected hearing loss from October 1, 1999 to October 18, 2006. The highest level of impairment documented during the pertinent time period is included in the report of the June 1998 VA examination. At that time, the average of the pure tone thresholds for 1000, 2000, 3000 and 4000 Hertz was 85 decibels in the right ear and 81.25 decibels in the left ear. When these numbers are combined with speech recognition thresholds of 76 percent in the right ear and 90 percent in the left ear, the resulting Roman Numerals from Table VI are V and V. When V and V are combined under Table VII, the resulting disability evaluation is 20 percent. Significantly, however, the Board notes there is evidence of record which indicates that the results of June 1998 are inadequate for rating as the veteran was malingering. In March 1999, a VA audiologist compared results of testing taken around the time of the June 1998 VA examination and opined that the veteran was malingering based on several inconsistencies in test results. The examiner who conducted the June 1998 VA examination also noted inconsistencies which indicated the possibility of malingering. Based on these findings, the Board has determined that the report of the June 1998 VA examination is inadequate to be used to rate the service-connected hearing loss. At the time of a VA examination conducted In March 1999, the average of the pure tone thresholds for 1000, 2000, 3000 and 4000 Hertz was 22.5 decibels in the right ear and 36.25 decibels in the left ear. When these numbers are combined with speech recognition thresholds of 96 percent in the right ear and 92 percent in the left ear, the resulting Roman Numerals from Table VI are I and I. When I and I are combined under Table VII, the resulting disability evaluation is 0 percent. Testing conducted in June 2004, revealed the average of the pure tone thresholds for 1000, 2000, 3000 and 4000 Hertz was 83.75 decibels in the right ear and 93.75 decibels in the left ear. When these numbers are combined with speech recognition thresholds of 92 percent in the right ear and 92 percent in the left ear, the resulting Roman Numerals from Table VI are III and III. When III and III are combined under Table VII, the resulting disability evaluation is 0 percent. However, Table VIa must be considered for the June 2004 audiometric readings, as all of the puretone thresholds were 55 decibels or more. 38 C.F.R. § 4.86a. Use of Table VIa would yield Roman Numeral VIII for the right ear and IX for the left ear which equates to a 50 percent rating under Table VII. The examiner who conducted the June 2004 examination, however, found that speech discrimination scores were far superior to what would be expected based on the severity of the hearing loss. It was the examiner's professional opinion that the veteran be retested for consistency, in order to perform puretone findings which were more accurate. The Board finds that the report of the June 2004 VA examination is inadequate for ratings purposes. The competent evidence of record indicates that the testing was invalid. Testing conducted in October 2004 resulted in a 10 percent disability evaluation which was already in effect at that time. The average of the pure tone thresholds for 1000, 2000, 3000 and 4000 Hertz was 97.5 decibels in the right ear and 101.25 decibels in the left ear. When these numbers are combined with speech recognition thresholds of 92 percent in the right ear and 92 percent in the left ear, the resulting Roman Numerals from Table VI are IV and IV. When IV and IV are combined under Table VII, the resulting disability evaluation is 10 percent. As each puretone threshold from the October 2004 testing is 55 decibels or more, 38 C.F.R. § 4.86a requires consideration of Table VIa. When this table is used, a Roman Numeral of X for the right ear and X for the left ear is obtained, which yields an 80 percent rating when applied to Table VII. Nevertheless, the examiner who conducted the October 2004 VA examination opined that, following an extensive review of the claims file, the veteran should receive further diagnostic testing "to clarify inconsistent and reliable [sic] result and to rule out a nonorganic hearing loss." Thus the Board finds that it cannot use the June 2004 and October 2004 audiological test results to assign a higher evaluation. The competent evidence of record indicates that those test results are invalid. The results of the audiological testing which was conducted in April 2005 do not warrant an increased rating. The average of the pure tone thresholds for 1000, 2000, 3000 and 4000 Hertz was 51.25 decibels in the right ear and 45 decibels in the left ear. When these numbers are combined with speech recognition thresholds of 96 percent in the right ear and 96 percent in the left ear, the resulting Roman Numerals from VI are I and I. When I and I are combined under Table VII, the resulting disability evaluation is 0 percent. The most recent audiological test results do not demonstrate sufficient symptomatology to warrant an increased rating. The average of the pure tone thresholds for 1000, 2000, 3000 and 4000 Hertz in October 2006 was 71.25 decibels in the right ear and 68.75 decibels in the left ear. When these numbers are combined with speech recognition thresholds of 92 percent in the right ear and 84 percent in the left ear, the resulting Roman Numerals from are II and III. When II and III are combined under Table VII, the resulting disability evaluation is 0 percent. However, applying 38 C.F.R. § 4.86(a), the resulting Roman Numerals are VI for the right ear and V for the left ear. When VI and V are combined under Table VII, the resulting disability evaluation is 20 percent which has already been assigned. Based on the above, the Board finds that a rating in excess of 10 percent prior to October 19, 2006, and in excess of 20 percent from October 19, 2006 is not warranted. The audiometric scores which are suitable for ratings purposes do not equate to higher disability evaluations than presently assigned for the pertinent time periods. Additionally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. The evidence in this case fails to show that the veteran's hearing loss now causes or has in the past caused marked interference with his employment, or that such has in the past or now requires frequent periods of hospitalization post-service rendering impractical the use of the regular schedular standards. Id. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against assignment of a rating in excess of 10 percent prior to October 19, 2006, and in excess of 20 percent from October 19, 2006 for the service-connected bilateral hearing loss. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit favorable determinations pursuant to 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs