Citation Nr: 0814619 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-17 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial compensable rating for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The veteran served on active duty from August 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied the benefit sought on appeal. The record reveals that the veteran was scheduled for an August 2006 hearing before a Decision Review Officer (DRO) at the Hartford, Connecticut RO. The veteran did not appear for his hearing. Accordingly, the veteran's claim will be considered without the benefit of such hearing. FINDINGS OF FACT 1. The veteran has Level I left ear hearing acuity. 2. The veteran does not have hearing loss disability in the right ear for VA disability compensation purposes. CONCLUSIONS OF LAW 1. A compensable rating for left ear hearing loss is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2007). 2. Right ear hearing loss was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal criteria The appropriate evaluation for a hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, as shown by audiometry, including a controlled speech discrimination test (Maryland CNC), and puretone audiometry, by a state-licensed audiologist. See 38 C.F.R. § 4.85. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. Id. Where there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) are 55 decibels or greater. Another occurs when the puretone threshold at 1000 hertz is 30 decibels or less, and the threshold at 2000 hertz is 70 decibels or more. See 38 C.F.R. § 4.86(a)(b). Table VII is then used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. Ratings for hearing impairment are 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). Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities, such as a sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). History and analysis The veteran submitted his claim for service-connection for bilateral hearing loss and tinnitus in March 2005. The December 2005 Rating Decision on appeal granted the veteran service connection for left ear hearing loss and assigned an initial rating of zero percent, effective from March 7, 2005. The rating decision also granted service connection for tinnitus, rated at 10 percent disabling, and denied service connection for right ear hearing loss. The veteran has appealed the zero percent rating for left ear hearing loss and the denial of service connection for right ear hearing loss. Private treatment records reference a 20 year history of bilateral high frequency sensorineural hearing loss, the left ear greater than the right. A private October 2004 audiological examination report shows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 35 LEFT 10 10 20 65 This data indicates left ear hearing loss disability under the VA criteria. See 38 C.F.R. § 3.385. A March 2005 VA audiological examination was conducted in response to the veteran's VA claim of service connection for hearing loss. The audiogram shows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 20 35 LEFT 5 10 15 35 65 In addition, speech recognition scores were 96 percent in each ear. This data indicates left ear hearing loss disability under the VA criteria. See 38 C.F.R. § 3.385. Service connection for right ear hearing loss While the veteran's treatment records reference a history of bilateral hearing loss going back 20 years, the October 2004 and March 2005 audiometric examination reports do not show right ear hearing loss as is defined by VA. See 38 C.F.R. § 3.385. The record contains no evidence indicating that the veteran has hearing loss in the right ear as defined by VA. Accordingly, the Board concludes that the preponderance of the evidence is against this claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for service connection for right ear hearing loss must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased rating for left ear hearing loss The March 2005 VA audiological examination report shows that left ear average puretone threshold was 31 decibels and speech recognition was 96 percent. Under Table VI, such hearing acuity is considered Level I. The right ear average puretone threshold was 16 decibels and speech recognition was 96 percent. The right ear does not exhibit hearing loss disability as is defined by VA, however. Since right ear hearing loss is not service connected, the numerical designation for the right ear is considered to be Level I. Combining the hearing level designations for the two ears under Table VII results in a zero percent rating under Code 6100. 38 C.F.R. § 4.85, Table VII. In this case the veteran is not shown to have an exceptional pattern of hearing impairment as described by 38 C.F.R. § 4.86. Left ear hearing loss is currently insufficient to establish entitlement to a compensable rating because the rating of hearing loss disability involves the mechanical application of the rating schedule to numeric designations assigned to official audiometry results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial- disability-rating and effective-date elements of a service- connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). By a March 2005 letter the RO sent the veteran the required notice regarding his claim for service connection. The letter specifically informed him of the type of evidence needed to support the claim, who was responsible for obtaining relevant evidence, where to send the evidence, and what he should do if he had questions or needed assistance. In this letter he was, in essence, told to submit all pertinent evidence he had in his possession pertaining to the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The March 2005 letter sent before the issuance of the rating decision also advised the veteran of his and VA's respective claim development responsibilities and the veteran was asked to identify sources of evidence concerning the claimed hearing loss disability. The Board notes that VAOPGCPREC 8- 2003 held that, if, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. A March 2006 statement of the case (SOC) explained what specific regulatory provisions govern his disability and why the increased rating claim remained denied. With respect to VA's duty to assist the veteran, the RO has obtained the veteran's service medical records, private medical records and provided the veteran VA audiometric and ear examinations. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the veteran nor his representative has indicated that there are any additional pertinent records to support the veteran's claims. In sum, the Board is satisfied that the originating agency properly processed the veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER A compensable rating for left ear hearing loss is denied. Service connection for right ear hearing loss is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs