Citation Nr: 0813701 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-40 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Woodward Deutsch, Associate Counsel INTRODUCTION The veteran served on active duty from September 1981 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted noncompensable service connection for bilateral hearing loss effective March 18, 2004. FINDINGS OF FACT Since the effective date of service connection, March 18, 2004, the veteran's service-connected hearing loss has been manifested by an auditory acuity level of no more than I in the right ear and II in the left ear. CONCLUSIONS OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2007); 38 C.F.R. § 4.85, DC 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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). The veteran's bilateral hearing loss is rated according to a mechanical application of the rating schedule, using numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85 (2007). The current rating criteria include an alternate method of rating exceptional patterns of hearing, as defined in 38 C.F.R. § 4.86 (2007). This alternative method provides that 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 of 38 C.F.R. § 4.85, whichever results in the higher numeral. Each ear will be evaluated separately. In this case, however, the veteran's test results do not meet the numerical criteria for such a rating based on an exceptional pattern of hearing. Furthermore, no audiologist has certified that the speech discrimination test is no appropriate because of language difficulties, speech discrimination scores, or for any other reason, so the use of Table VIa is not warranted. 38 C.F.R. § 4.85(c) (2007). The evidence of record consists of VA audiological examinations dated in August 2004 and October 2005. On VA examination in August 2004, the veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 15 25 65 LEFT 5 15 5 65 65 The averages were 28 in the right ear and 38 in the left ear. Speech recognition ability under the Maryland CNC speech recognition test was 100 percent in the right ear and 94 percent in the left ear. With respect to the veteran's right ear, applicable law provides that an average pure tone threshold of 28 decibels along with speech discrimination of 100 percent warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85. With respect to his left ear, the average pure tone threshold of 38 decibels along with speech discrimination of 94 percent also warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where both ears are at Roman I, the appropriate rating is zero percent under DC 6100. On private examination in October 2005, the veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 20 60 LEFT 5 15 10 65 60 The averages were 25 in the right ear and 38 in the left ear. Speech recognition ability under the Maryland CNC speech recognition test was assessed as 96 percent in the right ear and 88 percent in the left ear. With respect to the veteran's right ear, applicable law provides that an average pure tone threshold of 25 decibels along with speech discrimination of 96 percent warrants a designation of Roman Numeral I under Table VI of 38 C.F.R. § 4.85. With respect to his left ear, the average pure tone threshold of 38 decibels along with speech discrimination of 88 percent warrants a designation of Roman Numeral II under Table VI of 38 C.F.R. § 4.85. Under Table VII of 38 C.F.R. § 4.85, where the right ear is at Roman Numeral I and the left ear is at Roman Numeral II, a noncompensable rating is warranted under DC 6100. The Board acknowledges that the veteran has submitted the results of an old private audiological examination dated in November 1995. However, that audiological examination occurred more than eight years prior to the date that the veteran filed her initial claim for service connection for bilateral hearing loss on March 18, 2004. Therefore the Board finds that its probative value is outweighed by the more recent August 2004 and October 2005 audiological examinations showing bilateral hearing loss warranting no more than a noncompensable rating. In any event, the November 1995 examination did not reveal bilateral hearing loss that exceeded the level of hearing loss manifested in the veteran's subsequent examinations of record. The results of the veteran's August 2004 and October 2005 audiometric examinations are the only evidence of record that are valid and complete for rating purposes. No other competent evidence demonstrating a more severe hearing loss has been submitted. Thus, the Board finds that the veteran's disability has not warranted a compensable rating at any time since the original date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Board is sympathetic to the veteran's contentions regarding the severity of his service-connected bilateral hearing loss. However, the results from the audiometric examinations, as compared to the rating criteria, do not warrant a compensable rating for hearing loss. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating for bilateral hearing loss, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in April 2004 and March 2006, and a rating decision in September 2004. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the October 2005 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs