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