Citation Nr: 0813647	
Decision Date: 04/24/08    Archive Date: 05/01/08

DOCKET NO.  03-29 046	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan



THE ISSUE

Entitlement to an increased rating for bilateral hearing 
loss, currently evaluated as noncompensably disabling.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

A. Muhlfeld, Associate Counsel


INTRODUCTION

The veteran had active military service from February 1959 to 
February 1979. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a November 2002 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Detroit, Michigan.

The Board notes that a hearing before a Veterans Law Judge 
was scheduled to take place at the Detroit, Michigan Regional 
Office in June 2006; however, the veteran failed to report 
for the hearing.  Accordingly, the Board considers the 
veteran's request for a hearing to be withdrawn and will 
proceed to adjudicate the case based on the evidence of 
record.  See 38 C.F.R. § 20.704 (d), (e) (2007).

In September 2006, the Board remanded this case to provide 
the veteran another examination.  

In May 2006, the veteran filed a notice of disagreement 
(NOD), as to a January 2006 denial of service connection for 
a heart disability, including as secondary to diabetes 
mellitus.  However, the available record does not indicate 
that the RO has issued a statement of the case (SOC) in 
response to the veteran's NOD on this issue.  Consequently, 
the Board does not have jurisdiction to review the issue.  
38 C.F.R. §§ 20.200, 20.202 (2007).  Nevertheless, the issue 
will be remanded with instructions to issue an SOC.


FINDING OF FACT

The veteran's hearing acuity is manifested by no worse than 
level III hearing in the right ear, and level III hearing in 
the left ear.




CONCLUSION OF LAW

The criteria for a compensable rating for the veteran's 
bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 
6100 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's 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 representative 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).  The VCAA 
notice 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 possession that 
pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  But see Mayfield v. 
Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other 
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr 
05, 2006) (when VCAA notice follows the initial unfavorable 
AOJ decision, remand and subsequent RO actions may 
"essentially cure[] the error in the timing of notice").

The Board notes that the veteran was apprised of VA's duties 
to both notify and assist in correspondence dated in 
September 2002, and March 2006.  (Although the complete 
notice required by the VCAA was not provided until after the 
RO adjudicated the appellant's claims, any timing errors have 
been cured in the process of the previous remand and RO 
subsequent actions.  Id.)  

Specifically regarding VA's duty to notify, the notifications 
to the veteran apprised him of what the evidence must show to 
establish entitlement to an increased rating, what evidence 
and/or information was already in the RO's possession, what 
additional evidence and/or information was needed from the 
veteran, what evidence VA was responsible for getting, and 
what information VA would assist in obtaining on the 
veteran's behalf.  The RO specifically requested that the 
veteran identify or submit any evidence or information he had 
pertaining to his claim.  The RO also provided a statement of 
the case (SOC) and four supplemental statements of the case 
(SSOCs) reporting the results of its reviews of the issue and 
the text of the relevant portions of the VA regulations.  The 
veteran was apprised of the criteria for assigning disability 
ratings and for award of an effective date.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board has considered the Court's recent holding in 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning 
increased compensation claims and 38 U.S.C. § 5103(a) notice 
requirements, and finds that further notification is not 
necessary.  With such claims, section 5103(a) compliant 
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 that worsening has 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.  

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-adjudicatory notice of any of the 
necessary duty-to-notify elements is presumed to create 
prejudicial error.  Sanders v. Nicholson, 487 F.3d 881 
(2007).  Nevertheless, lack of harm may be shown (1) when any 
defect was cured by actual knowledge on the part of the 
claimant, (2) when a reasonable person could be expected to 
understand from the notice what was needed, or (3) when 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).  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).  

The Board notes that prior to the initial adjudication of the 
claim, the RO sent the veteran a September 2002 letter, which 
requested that the veteran provide evidence describing how 
his disability had increased in severity.  In addition, the 
veteran was questioned about the effect that worsening had on 
his daily life at the October 2006 VA examination performed 
in association with this claim.  The Board finds that the 
notice provided in the 2002 letter along with responses to 
the questioning at the October 2006 examination regarding the 
situations that give the veteran the greatest difficulty in 
his daily life (in terms of dealing with his hearing 
disability), show that the veteran had actual knowledge that 
medical and lay evidence was required to show an increase in 
severity, including the impact on his daily life.  

As will be discussed below, bilateral hearing loss is rated 
under Diagnostic Code 6100, 38 C.F.R. § 4.85.  This is the 
only Diagnostic Code to rate this disability and it is not 
cross referenced to any other Codes for the purposes of 
evaluation.  See id.  The Diagnostic Code relies on a single 
measurement or test to establish a higher rating.  See id.  
The veteran was not provided notice of this as required by 
Vazquez-Flores, supra.  The Board notes, however, that the 
veteran was later given notice of the exact criteria on which 
his disability is rated.  This was done in a statement of the 
case.

A March 2006 letter provided notice to the veteran that a 
disability rating would be determined by application of the 
ratings schedule and relevant Diagnostic Codes based on the 
extent and duration of the signs and symptoms of his 
disability and their impact on his employment and daily 
life.  See Vazquez-Flores.  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.  As 
noted above, bilateral hearing loss is rated solely under 
Diagnostic Code 6100, 38 C.F.R. § 4.85.  The Board also notes 
that the substance and application of Diagnostic Code 6100 
have been upheld as reasonable exercises of the Secretary's 
rulemaking authority.  Martinak v. Nicholson, 21 Vet. App. 
447 (2007).  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.  The 
veteran was made aware of this.

A September 2002 letter provided notice to the veteran of the 
types of evidence, both medical and lay, that could be 
submitted in support of his claim.  In light of the 
foregoing, the Board finds that, while the notice 
requirements of Vazquez-Flores were not met as contemplated 
by the Court, the administrative appeal process provided the 
veteran with notice of the specific rating criteria and it is 
apparent from the record that he understood those things 
relative to a claim for increase as contemplated by the 
Vazquez-Flores Court.  Consequently, a remand is not now 
required to furnish additional notice.  

Regarding VA's duty to assist, the RO obtained the veteran's 
service medical records (SMRs), VA records, and secured 
examinations in furtherance of his claim.  VA has no duty to 
inform or assist that was unmet.

The veteran filed an increased rating claim in July 2002 for 
his service-connected bilateral hearing loss, contending that 
his hearing loss had grown worse over the years.

In July 1991, (prior to filing his increased rating claim), 
the veteran was afforded a VA audiological examination.  The 
July 1991 evaluation reported that pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
n/a
20
55
65
65
LEFT
n/a
20
40
65
65

The puretone threshold averages were 51 decibels for the 
right ear and 48 decibels for the left ear. Speech audiometry 
revealed speech recognition ability of 84 percent in the 
right ear and of 90 in the left ear.

In October 2002, the veteran was afforded another VA 
audiological examination.  The audiological evaluation 
reported that pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
70
85
75
LEFT
25
40
60
80
75

The puretone threshold averages were 66 decibels for the 
right ear and 64 decibels for the left ear.  Speech 
audiometry revealed speech recognition ability of 92 percent 
in the right ear and of 92 percent in the left ear, and the 
examiner diagnosed the veteran with mild sloping to severe 
bilateral sensorineural hearing loss, and noted that the 
results revealed a 10-20 decibel decrease in hearing 
thresholds in both ears from the last rating exam in 1991.

In October 2006, the veteran was afforded another VA 
audiological examination.  The audiological evaluation 
reported that pure tone thresholds, in decibels, were as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
80
85
80
LEFT
35
45
75
80
80

The puretone threshold averages were 72.5 decibels for the 
right ear and 70 decibels for the left ear.  Speech 
audiometry revealed speech recognition ability of 88 percent 
in the right ear and of 88 percent in the left ear.  The 
examiner stated that the audiological evaluation revealed a 
mild sensorineural hearing loss at 250-500 Hz, and noted that 
the only significant change from the 2002 VA examination was 
the 15 decibel poorer threshold at 2 kHz in the left ear, but 
noted that all other thresholds were slightly (but not 
significantly) poorer, because all puretone thresholds were 
within 10 decibels of the 2002 results, (except for the 
reading at 2 kHz).  In addition, he noted that word 
recognition was not significantly changed from the 2002 VA 
examination results.

The Board notes that a private audiological evaluation was 
conducted in September 2006, by Earphonics, Inc., Beltone 
Hearing Aid Center, and contained a Beltone audiogram which 
evaluated the veteran's puretone hearing thresholds in 
decibels, in addition to some form of speech testing.  
However, the Board notes that the hearing examination did not 
include a controlled speech discrimination test (Maryland 
CNC) as required by VA regulations.  See 38 C.F.R. § 4.85.  
Because a VA audiological evaluation was conducted only a 
month later, which tested the veteran's puretone hearing 
thresholds and speech discrimination, the Board finds that 
the puretone decibel results of this private audiological 
evaluation are not necessary to properly evaluate the 
veteran's claim.

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule), found in 38 C.F.R. Part 4.  The Board attempts to 
determine the extent to which the veteran's service-connected 
disability adversely affects his ability to function under 
the ordinary conditions of daily life, and the assigned 
rating is based, as far as practicable, upon the average 
impairment of earning capacity in civil occupations.  Where 
entitlement to compensation has already been established and 
an increase in the assigned  evaluation is at issue, it is 
the present level of disability that is of primary concern.  
Francisco v. Brown, 7. Vet. App.  55, 58 (1994).  Although 
the recorded history of a particular disability should be 
reviewed in order to make an accurate assessment under the 
applicable criteria, the regulations do not give past medical 
reports precedence over current findings.  Id.  However, 
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).   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 (2007).

Defective hearing is rated in accordance with the criteria 
set forth in 38 C.F.R. §§ 4.85, 4.86.  In evaluating the 
veteran's hearing loss, the Board notes that hearing loss 
evaluations are determined by a mechanical application of the 
rating schedule, which is grounded on numeric designations 
assigned to audiometric examination results.  See, e.g., 
Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1999).  Ratings 
range from zero to 100 percent based on organic impairment of 
hearing acuity.  Auditory acuity is gauged by examining the 
results of controlled speech discrimination tests, together 
with the results of puretone audiometric tests in the 
frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. 
§ 4.85(c).  

To rate the degree of disability, the rating schedule 
establishes 11 auditory acuity levels ranging from level I, 
for essentially normal acuity, through level XI, for profound 
deafness.  38 C.F.R. § 4.85, Table VI.  Once the auditory 
acuity levels are determined, Table VII is then applied 
through use of the resulting auditory acuity level Roman 
numeral scores, which reveals the disability rating to be 
awarded.

Entering the examination results from the veteran's October 
2002 examination into Table VI (abbreviated below from 
38 C.F.R. § 4.85) shows that the right ear warrants a score 
of II and the left ear warrants a score of II:

% of 
discri
m- 
inatio
n
Table VI - Puretone Threshold Average

0-
41
42-
49
50-
57
58-
65
66-
73
74-
81
82-
89
90-
97
98
+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 

Entering these results in Table VII, it can be seen that, 
based on the examination results in October 2002, the 
veteran's bilateral hearing loss was non-compensably (zero 
percent) disabling at that time:

Table - VII Percentage Evaluation
B
e
t
t
e
r 
E
a
r
V
40
40
40
30
30
20
20
 
 
 
 

IV
30
30
30
20
20
20
10
10
 
 
 

III
20
20
20
20
20
10
10
10
0
 
 

II
10
10
10
10
10
10
10
0
0
0
 

I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VII
I
VI
I
VI
V
IV
II
I
II
I

Poorer Ear

Entering the examination results from the veteran's October 
2006 examination into Table VI (abbreviated below from 
38 C.F.R. § 4.85) shows that the right ear warrants a score 
of III and the left ear warrants a score of III:

% of 
discri
m- 
inatio
n
Table VI - Puretone Threshold Average

0-
41
42-
49
50-
57
58-
65
66-
73
74-
81
82-
89
90-
97
98
+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 

Entering these results in Table VII, it can be seen that, 
based on the examination results in October 2006, the 
veteran's bilateral hearing loss has remained non-compensably 
(zero percent) disabling:


Table - VII Percentage Evaluation
B
e
t
t
e
r 
E
a
r
V
40
40
40
30
30
20
20
 
 
 
 

IV
30
30
30
20
20
20
10
10
 
 
 

III
20
20
20
20
20
10
10
10
0
 
 

II
10
10
10
10
10
10
10
0
0
0
 

I
10
10
0
0
0
0
0
0
0
0
0 
 
XI
X
IX
VII
I
VI
I
VI
V
IV
II
I
II
I

Poorer Ear

The Board has considered the provisions of 38 C.F.R. § 4.86, 
which allow for a higher evaluation when exceptional patterns 
of hearing loss are present.  However, because the evidence 
does not show exceptional patterns of hearing loss, a higher 
evaluation is not warranted.  38 C.F.R. § 4.86 (exceptional 
patterns are those where the puretone thresholds at each of 
the four evaluated frequencies (1000, 2000, 3000, and 4000 
Hertz) is 55 decibels or more, or where the puretone 
threshold at 1000 Hertz is 30 decibels or less and the 
puretone threshold at 2000 Hertz is 70 decibels or more).  

In deciding this issue the Board has considered the 
provisions of 38 U.S.C.A. § 5107 (benefit of the doubt).  
Under the benefit-of-the-doubt standard, when a veteran seeks 
benefits and the evidence is in relative equipoise regarding 
any issue material to the determination of a matter, the law 
dictates that the benefit of any doubt belongs to the 
veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49, 54 (1990).  However, where, as 
here, the rating criteria are determined by a mechanical 
application of numeric designations assigned to audiometric 
examination results, which are not contradicted by the 
remaining record, the record does not raise a doubt.  Even 
though the veteran's hearing acuity has indeed worsened as 
suggested by the change in numeric designations, application 
of the rating criteria dictates no change in the rating 
assigned.  In other words, it has not worsened to the point 
that a compensable rating is warranted.  The preponderance of 
the evidence is against the claim.


ORDER

Entitlement to a compensable rating for bilateral hearing 
loss is denied.


REMAND

In a January 2006 rating decision, the RO denied service 
connection for a heart condition, to include as secondary to 
the veteran's service-connected diabetes mellitus.  The case 
file was at the Board later in 2006 while other issues were 
considered.  Apparently, in May 2006, the veteran filed a 
notice of disagreement (NOD) with the January 2006 rating, 
but the RO kept the NOD in a temporary folder maintained at 
the RO.  Consequently, the Board was not aware, when it 
handled the case in September 2006, that the NOD had been 
filed.  The NOD was added to the file in December 2006 when 
the RO forwarded it to the Appeals Management Center (AMC).

Because there is an NOD, the next step in the appellate 
process is for the RO to issue the veteran an SOC summarizing 
the evidence relevant to the claim for service connection for 
a heart disability secondary to service-connected diabetes, 
the applicable legal authority, and the reasons that the RO 
relied upon in making its determination.  See 38 C.F.R. § 
19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240-41 
(1999); Holland v Gober, 10 Vet. App. 433, 436 (1997).  
Although the Board does not have jurisdiction over such a 
claim, the Court requires that the case be remanded in such 
situations.  Manlincon, supra.  Even when a statement of the 
case may have already been issued, if it is not in the claims 
file, the Board is left to surmise that it has not been 
prepared.  Consequently, the claim for service connection for 
a heart disability as secondary to diabetes mellitus must be 
remanded to the RO for the issuance of an SOC.  The Board 
emphasizes, however, that to obtain appellate review of any 
issue not currently in appellate status, a substantive appeal 
must be filed after an SOC is issued by the RO.  See 38 
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 
20.202 (2007).

Accordingly, this matter is REMANDED to the AOJ for the 
following action:

If not already done, the AOJ should 
provide the veteran and his 
representative an SOC addressing the 
claim for service connection for a heart 
disability as secondary to diabetes 
mellitus.  (The veteran and his 
representative are hereby reminded that 
appellate consideration of this claim may 
be obtained only if a timely appeal is 
perfected.)  If, and only if, the veteran 
files a timely appeal, this issue should 
be returned to the Board.

By this remand, the Board intimates no opinion as to any 
final outcome warranted.  No action is required of the 
veteran.  The veteran has the right to submit additional 
evidence and argument on the matter the Board has remanded to 
the AOJ.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment by the AOJ.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs