Citation Nr: 0814632	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  06-30 428	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUE

Entitlement to an increased evaluation for hearing loss, 
currently evaluated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 1955 to 
January 1958 and from February 1961 to February 1978.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a February 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
North Little Rock, Arkansas.

In May 2007, the veteran appeared at the Little Rock RO and 
testified at a video conference hearing before the 
undersigned Veterans Law Judge.  A transcript of this hearing 
was prepared and associated with the claims folder.

In a November 2005 statement, the veteran noted that he was 
hearing "crickets" when he returned from Vietnam in 1973.  
Tinnitus was diagnosed in the January 2006 VA examination 
report and the examiner stated that the most likely etiology 
of the veteran's tinnitus was acoustic trauma experienced in 
the service.  This issue has not been addressed by the RO and 
is for appropriate action.


FINDING OF FACT

The service-connected bilateral hearing loss is manifested by 
Level V hearing in the right ear and Level V hearing in the 
left ear.


CONCLUSION OF LAW

The criteria for a disability evaluation 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. §§ 3.321, 4.85, 4.86, 
Diagnostic Code 6100 (2007).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matter

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law 
No. 106-475, 114 Stat. 2096 (2000), substantially amended the 
provisions of chapter 51 of title 38 of the United States 
Code, concerning the notice and assistance to be afforded to 
claimants in substantiating their claims.  VCAA § 3(a), 114 
Stat. 2096, 2096-97 (2000) (now codified as amended at 38 
U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006)).  In 
addition, VA published regulations, which were created for 
the purpose of implementing many of the provisions of VCAA.  
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in 
pertinent part, at 38 C.F.R. § 3.159 (2007)).

Relevant to the duty to notify, the United States Court of 
Appeals for Veterans Claims (Court) has indicated that notice 
under the VCAA must be given prior to an initial unfavorable 
decision by the agency of original jurisdiction.  See 
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini 
II). In Pelegrini II, the Court held that the VCAA requires 
VA to provide notice, consistent with the requirements of 38 
U.S.C.A. § 5103(A), that informs 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, 
and (3) that the claimant is expected to provide; and that, 
furthermore, in what can be considered a fourth element of 
the requisite notice, VA must also request that the claimant 
provide any evidence in the claimant's possession that 
pertains to the claim, under 38 C.F.R. § 3.159(b).  See also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Board finds that the notification requirements of VCAA 
have been satisfied in this case. In this regard, the Board 
notes an evidence development letter dated in December 2005 
in which the RO advised the veteran of the evidence needed to 
substantiate his claim for an increased evaluation, and of 
his and VA's responsibilities under VCAA, to include what 
evidence should be provided by him and what evidence should 
be provided by VA.  This letter also requested that the 
veteran submit any evidence in his possession that pertains 
to his claim.  Furthermore, additional notice was provided in 
letters dated in March 2006 and May 2006 as to both the 
disability rating and effective date elements of a claim.  
 
In the recent decision of Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008), the Court held that, with respect to 
increased rating claims, 38 U.S.C. § 5103(a) 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 of 
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.  

In this case, the notice letters discussed above satisfied 
elements (1), (2), and (4), but they did not advise the 
veteran of the particular diagnostic code under which his 
disability was rated.

The U.S. Court of Appeals for the Federal Circuit recently 
held that any error in a VCAA notice should be presumed 
prejudicial.  The claimant bears the burden of demonstrating 
such error. VA then bears the burden of rebutting the 
presumption, by showing that the essential fairness of the 
adjudication has not been affected because, for example, 
actual knowledge by the claimant cured the notice defect, a 
reasonable person would have understood what was needed, or 
the benefits sought cannot be granted as a matter of law.  
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).

Although the notice letters did not provide the specific 
diagnostic code applicable to his disability, the record 
reflects that he was advised of this code in a Statement of 
the Case (SOC) dated in August 2006.  As he received the 
rating criteria, and because the notice letters provided to 
the veteran over the course of the appeal otherwise met the 
requirements of VCAA, the Board finds that the veteran was 
essentially provided all information necessary for a 
reasonable person to understand what evidence and/or 
information was necessary to substantiate his claim.  The 
record also reflects that the veteran testified at a personal 
hearing and has otherwise had a meaningful opportunity to 
participate in the development of his claim.  Therefore, the 
Board concludes that the veteran is not prejudiced by any 
technical notice deficiency along the way.  See Conway v. 
Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sanders, supra..

As to the post-adjudication timeliness of the notice letters 
from March 2006 and May 2006, the Board notes that the claim 
was subsequently readjudicated by the RO following the 
issuance of the letters in the August 2006 SOC.  Thus, the 
Board finds any error with respect to the timeliness of those 
notices to be harmless.  See Bernard v. Brown, 4 Vet. App. 
384, 394 (1993).  

Although the veteran's claim was not readjudicated following 
the issuance of the applicable diagnostic criteria for 
hearing loss in the SOC, as noted, the record reflects that 
the veteran had a meaningful opportunity to participate 
effectively in the processing of his increased rating claim.  
A March 2007 report of contact notes that the veteran was 
notified by telephone that his claim was reviewed and that 
all of the evidence VA requested and was informed about had 
been obtained.  He was told that VA was ready to make a 
decision and would rate his claim within five working days if 
he had no additional evidence to submit or of which to inform 
VA.  At this time, the veteran requested a Travel Board 
hearing.  At this hearing, the veteran testified that he 
believed his hearing examination was inadequate because it 
was conducted in an enclosed room and used voices that were 
speaking distinctly.  The veteran noted that his hearing loss 
has affected his ability to hear and understand people when 
they have an accent or do not speak clearly, of when there is 
background noise.  The veteran's representative requested 
that the veteran be considered for an extraschedular 
evaluation based on the difficulty the veteran has in 
functioning in environments that are not perfectly 
controlled.  The Board believes that this testimony reflects 
an understanding of the criteria that are used to rate 
hearing loss and thus finds that any VCAA notice errors did 
not affect the essential fairness of the adjudication and 
that any procedural defect caused by the timing of the notice 
was cured.  See Sanders, supra; see also Bernard, supra.

The Board further finds that the duty to assist requirements 
of VCAA have also been satisfied in this case.  Specifically, 
the Board finds that all obtainable evidence identified by 
the veteran relative to these issues has been obtained and 
associated with the claims folder, and that he has not 
identified any other pertinent evidence, not already of 
record, which would need to be obtained for an equitable 
disposition of this appeal.  The RO has obtained the 
veteran's VA treatment records and a VA examination report 
from January 2006.

In short, the Board finds that VA has satisfied its duty to 
assist to the extent possible under the circumstances by 
obtaining evidence relevant to his claim.  38 U.S.C.A. §§ 
5103 and 5103A.

II.  Analysis

Disability evaluations are determined by the application of a 
schedule of ratings that is based on the average impairment 
of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. § Part 4.  Separate diagnostic codes identify the 
various disabilities.  The governing regulations provide that 
the higher of two evaluations will be assigned if the 
disability more closely approximates the criteria for that 
rating.  Otherwise, the lower rating is assigned.  38 C.F.R. 
§ 4.7 (2007).

The appellant's entire history is reviewed when making 
disability evaluations.  See generally 38 C.F.R. 4.1; 
Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where 
entitlement to compensation already has been established and 
an increase in the disability rating is at issue, it is the 
present level of disability that is of primary concern.  See 
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, 
the Board acknowledges that a claimant may experience 
multiple distinct degrees of disability that might result in 
different levels of compensation from the time the increased 
rating claim was filed until a final decision is made.  Hart 
v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007).  
The analysis in the following decision is therefore 
undertaken with consideration of the possibility that 
different ratings may be warranted for different time 
periods. 

The appellant's service-connected bilateral hearing loss is 
currently rated as 20 percent disabling under 38 C.F.R. § 
4.85, Diagnostic Code (DC) 6100.  He essentially contends 
that a higher rating is warranted.

Having reviewed the complete record, the Board finds the most 
probative evidence of record to be the reports of 
audiological evaluations conducted in June 2005, September 
2005, and January 2006.

In this regard, the Board notes that the June 2005 
audiological evaluation revealed pure tone threshold averages 
of 40 decibels in the right ear and 45 decibels in the left 
ear.  Speech recognition was found to be 76 percent in the 
right ear and 84 percent in the left.

These audiometric findings reflect Level III auditory acuity 
in the right ear and Level II auditory acuity in the left 
ear.  See 38 C.F.R. § 4.85, Table VI.  These numeric 
designations in combination correspond to a zero percent 
rating.  See 38 C.F.R. 4.85, Table VII, DC 6100.  Thus, the 
Board finds that the level of hearing that has been 
demonstrated on this evaluation is not consistent with a 
compensable schedular evaluation under the regulation.

Similarly, the September 2005 audiological evaluation 
revealed a pure tone threshold average of 25 decibels in each 
ear and speech recognition was found to be 84 percent in each 
ear.  These audiometric findings reflect Level II auditory 
acuity in each ear, which corresponds to a zero percent 
rating under Table VII, DC 6100.

The January 2006 VA examination report notes a pure tone 
threshold average of 65 decibels in the right ear and 57.5 
decibels in the left ear.  Speech recognition was found to be 
68 percent in each ear.  These audiometric findings reflect a 
Level V auditory acuity in each ear, which corresponds to a 
20 percent rating under Table VII, DC 6100.  Thus, the most 
severe degree of hearing loss shown on objective examination 
is consistent with a disability rating of no more than 20 
percent.

Furthermore, there are no contrary medical findings of record 
suggesting that the appellant's hearing loss met the pure 
tone thresholds necessary for an increased evaluation under 
DC 6100.  Thus, benefit sought on appeal must be denied.

The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns 
of hearing impairment) do not apply to the appellant's 
situation as the audiometric results of both of these 
evaluations did not show pure tone thresholds of loss of 55 
decibels or greater in the four relevant frequencies in 
either ear.  The provisions of 38 C.F.R. § 4.86(b) are also 
not applicable as neither ear is shown to manifest 30 
decibels or less at 1000 Hz, and 70 decibels or more at 2000 
Hz.

The Board is sympathetic to the appellant's assertion that 
the results of an audiological evaluation do not accurately 
reflect the difficulties that he experiences as a result of 
his hearing loss.  As discussed above, however, disability 
ratings for hearing impairment are derived by a mechanical 
application of the rating schedule to the numeric 
designations assigned after audiometric evaluations are 
rendered.  See Lendenmann v. Principi, 3 Vet. App. 345 
(1992).  In addition, 38 C.F.R. § 4.85(a) sets forth the 
parameters under which an examination for hearing impairment 
for VA purposes must be conducted.  The regulation requires 
that the examination be performed by a state-licensed 
audiologist, and it must include both a controlled speech 
test (Maryland CNC) and a pure tone audiometry test.  

Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447, 455-
56 (2007), the Court held that audiometric testing in sound 
controlled rooms are adequate testing grounds for rating 
purposes.  The veteran and his representative have offered no 
expert medical evidence demonstrating that an audiometry test 
conducted in a sound-controlled room produces inaccurate, 
misleading, or clinically unacceptable test results; nor has 
he offered any expert medical evidence demonstrating that an 
alternative testing method exists and that such method is in 
use by the general medical community.  They have simply 
offered their own unsubstantiated lay opinion as to the 
impropriety of this testing method; thus, no additional 
development in this regard is warranted.  See Martinak, 
supra. 

In this case, the regulatory requirements for an examination 
for hearing purposes were met, and application of the rating 
schedule to the results of those examinations show that the 
appellant's disability warrants no more than a 20 percent 
schedular rating for the entire period of the pendency of 
this appeal.  See Hart, supra.

The Board also finds that the appellant's service-connected 
hearing loss does not present such an unusual or exceptional 
disability picture as to require an extraschedular evaluation 
pursuant to the provisions of 38 C.F.R. § 3.321(b).  It has 
not been contended or otherwise indicated that the service-
connected disability has resulted in any hospitalization or 
other extensive treatment regimen.  It is undisputed that 
appellant's reported symptoms could have an adverse effect on 
employment, but it bears emphasis that the schedular rating 
criteria are designed to take such factors into account.  
Indeed, the schedule is intended to compensate for average 
impairments in earning capacity resulting from service-
connected disability in civil occupations.  38 U.S.C.A. § 
1155.  "Generally, the degrees of disability specified [in 
the rating schedule] are considered adequate to compensate 
for considerable loss of working time from exacerbations or 
illnesses proportionate to the severity of the several grades 
of disability."  38 C.F.R. § 4.1.

The Board finds that the schedular evaluation in this case is 
not inadequate.  The Board further finds no evidence of an 
exceptional disability picture in this case.  The appellant 
has not required any hospitalization for his disability.  
While the evidence in the record indicates that the veteran 
last worked in 2000, the evidence does not establish that he 
is currently unemployed due to his service-connected hearing 
loss.  The Board also notes that some degree of occupational 
impairment is already contemplated in the schedular ratings 
currently assigned for his hearing loss disability.  However, 
the appellant has not offered any objective evidence of any 
extensive inpatient treatment for this disability, nor has he 
produced any documentation of unusual circumstances so as to 
render impractical the application of the regular schedular 
standards.

Consequently, the Board concludes that referral for 
consideration of the assignment of an extraschedular rating 
is not warranted in this case.  See Floyd v. Brown, 8 Vet. 
App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-
339 (1996) (when evaluating an increased rating claim, it is 
well established that the Board may affirm an RO's conclusion 
that a claim does not meet the criteria for submission for an 
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or 
may reach such a conclusion on its own).




ORDER

Entitlement to an increased evaluation for hearing loss, 
currently rated as 20 percent disabling, is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs