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 Accordingly, the Board considers the veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record.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