Citation Nr: 0812996 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-30 972 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 20 percent for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The veteran retired from active military service June 1974, after serving 20 years. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2003 rating decision. FINDING OF FACT The veteran's bilateral hearing loss is currently manifested by hearing acuity of Level III in the right ear and Level VII in the left ear. CONCLUSION OF LAW Criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.86 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran is currently rated at 20 percent for bilateral hearing loss. He indicated in February 2003 that his hearing had worsened and he felt that a higher rating was warranted. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral defective hearing 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 level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 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. 38 C.F.R. § 4.86(a). Similarly, if the pure tone threshold is 30 decibels or less at 1,000 Hz, and 70 decibels or more at 2,000 Hz, 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. Table VIa, "Numeric Designation of Hearing Impairment Based Only on Pure tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85(c). The veteran underwent a VA audiologic examination in April 2003, the results of which are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 55 35 60 70 85 LEFT 50 45 70 85 100 The average pure tone threshold in the veteran's left ear was 75 decibels. The average pure tone threshold in the veteran's right ear was 63 decibels. The veteran also received a score of 74 percent for the left ear and 86 percent for the right ear on the Maryland CNC test for word recognition. Accordingly, the veteran was assigned level III for his right ear and level VI for his left ear, which meets the schedular criteria for a 10 percent rating for hearing loss. Table VIa was not available, as the evidence failed to show a decibel loss of 55 at 1,000 Hz for either ear, and failed to show a loss of less than 30 decibels at 1,000 Hz in either ear. Private treatment records from 1998-2003 show that the veteran was diagnosed with otitis externa and an ear infection at various times; however, the records failed to show any results of audiologic testing that differed from what was shown on VA examinations. In June 2004, the veteran underwent another VA examination, but the test results were considered unacceptable for rating purposes due to poor inter-test reliability; and, in July 2004, the veteran had a private audiogram conducted, but the doctor indicated that background masking was difficult. As such, the veteran's claim was remanded for another VA audiologic examination which he underwent in October 2007, the results of which are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 60 70 75 LEFT 70 75 75 85 85 The average pure tone threshold in the veteran's left ear was 80 decibels. The average pure tone threshold in the veteran's right ear was 61 decibels. The veteran also received a score of 78 percent for the left ear and 86 percent for the right ear on the Maryland CNC test for word recognition. These results equate to a level III for the veteran's right ear and level V for his left ear, which merits a 10 percent rating using Table VI. Table VIa, however, is available for the veteran's left ear as he has at a decibel loss of at least 55 at each of the four specified frequencies. This results in a level VII rating for the veteran's left ear. Table VIa is not available for the veteran's right ear since the veteran had a decibel loss in his right ear at 1,000 Hz that was above 30 and below 55. When applying Table VIa for the left ear, the results of the test show a 20 percent disability level for bilateral hearing loss. While the veteran has contended on several occasions that is hearing loss was more severe than he is currently rated, audiologic testing fails to corroborate his assertions. Treatment records show that the veteran wears hearing aids, and that he has had a history of ear infections. However, hearing loss for disability purposes is rated mechanically based on audiological testing; and in this case, at no time during the course of his appeal has testing of the veteran's hearing acuity shown hearing loss that would warrant a rating in excess of the 20 percent he is currently assigned. As such, the criteria for a higher rating have not been met, and the veteran's claim is therefore denied. II. Duties to Notify and Assist 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). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA 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. Id. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in March 2007, informing him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. The Board acknowledges that the VCAA letter sent to the veteran in March 2007 does not meet all the requirements of Vazquez-Flores and is not sufficient as to content and timing, thereby creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, the statement of the case in July 2004 provided the veteran with notice of the rating criteria for rating hearing loss; and the veteran's claim was readjudicated following provision of this information. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006). Therefore, the veteran can be expected to understand from the various letters from the RO what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, in May 2004, the veteran submitted a statement indicating that because hearing tests had shown more severe hearing loss he was resubmitting his claim. As such, any notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Private and VA treatment records have been obtained. The veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). Additionally, the veteran was offered the opportunity to testify at a hearing before the Board, but he declined. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. ORDER A rating in excess of 20 percent for bilateral hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs