Citation Nr: 0814658 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-10 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a higher initial rating for bilateral hearing loss disability, currently rated 20 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The veteran served on active duty from November 1965 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) from a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in July 2005, a statement of the case was issued in March 2007, and a substantive appeal was received in April 2007. The veteran testified at a hearing before the undersigned in August 2007; the transcript is of record. FINDING OF FACT The veteran has no higher than level IV hearing acuity in the right ear and level VII hearing acuity in the left ear. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 20 percent for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VCAA letters were issued to the veteran in January and April 2004 pertaining to his claim of entitlement to service connection for bilateral hearing loss disability. The letters predated the July 2004 rating decision. See id. Since the bilateral hearing loss disability appellate issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which the January and April 2004 VCAA letters were duly sent), another VCAA notice is not required. VAOPGCPREC 8- 2003 (Dec. 22, 2003). Collectively, the VCAA letters notified the veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The VCAA letters have clearly advised the veteran of the evidence necessary to substantiate his claim. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, 19 Vet. App. at 486. Although the present appeal involves an increased rating issue, VA believes that the Dingess/Hartman analysis must be analogously applied. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate the underlying claim of service connection, but there has been no notice of the types of evidence necessary to establish a disability rating or an effective date. Despite the inadequate notice provided to the veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board notes that the RO did furnish the veteran letters in January and April 2004 which advised him of the evidence necessary to support his service connection claim. Since the Board concludes below that the preponderance of the evidence is against entitlement to an increased rating, any questions as to the appropriate effective date to be assigned are rendered moot. The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the veteran's service medical records and post-service VA medical records. There is no indication of relevant, outstanding records which would support the veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). Additionally, the evidence of record contains VA audiological examinations performed in May 2004 and May 2007. The examination reports obtained are thorough and contain sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). For all the foregoing reasons, the Board concludes that VA's duties to the veteran have been fulfilled with respect to the issue on appeal. Criteria & Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Table Via will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). 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, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI.. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be 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). On an examination performed for separation purposes in September 1969, the veteran's ears were clinically evaluated as normal and pure-tone thresholds for the ears were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 20 25 45 45 LEFT N/A 25 40 50 50 In September 2002, the veteran sought VA outpatient treatment for hearing loss. Specific pure-tone threshold results were not documented. There was mild to moderate sensorineural hearing loss in the right ear above 500 Hertz, and mild to severe sensorineural hearing loss in the left ear above 500 Hertz. In May 2004, the veteran underwent a VA audiological examination. He reported that during service he was exposed to hazardous noise. He reported significant problems understanding conversation. He needs to be close to people when they speak, and he watches their faces. He has to turn the television volume up, and has problems understanding the telephone if the volume is not turned up. Pure-tone thresholds for the ears were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 40 60 55 55 LEFT N/A 50 70 70 70 The pure tone average in the right ear was 52.50 decibels, and 65 decibels in the left ear. Speech recognition scores were 80 percent in the right ear, and 60 percent in the left ear. The examiner determined that the veteran has mild mid to moderate-severe high frequencies sensorineural hearing loss in the right ear. In his left ear, he has moderate mid to severe mid-high frequencies sensorineural hearing loss. He has slight (right) and moderate (left) difficulty with speech discrimination. Such findings translate to level IV hearing in the right ear and level VI hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 20 percent rating for hearing loss. In May 2007, the veteran underwent another VA audiological examination. He complained of reduced ability to hear and understand speech. Pure-tone thresholds for the ears were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 35 55 55 55 LEFT N/A 50 65 75 75 The pure tone average in the right ear was 50 decibels, and 66.25 decibels in the left ear. Speech recognition scores were 76 percent in the right ear, and 64 percent in the left ear. Pure tone results showed a mild to moderately severe sensorineural hearing loss in the right ear and a moderate to severe sensorineural hearing loss in the left ear. Word recognition was mildly reduced in the right ear and moderately reduced in the left ear. There was normal middle ear function in both ears. Reflexes were normal in all conditions in both ears. There was positive reflex decay at 1000 Hertz in the right ear, and negative reflex decay in the left ear at 1000 Hertz. There was negative STAT at 1000 Hertz in both ears. The diagnosis rendered was bilateral sensorineural hearing loss. Such findings translate to level IV hearing in the right ear and level VII hearing in the left ear. 38 C.F.R. § 4.85, Table VII. Applying Table VII, Diagnostic Code 6100, this again equates to a 20 percent rating for hearing loss. The Board acknowledges the veteran's contentions regarding impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the veteran's favor. However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results most favorable to the veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a disability rating in excess of 20 percent for bilateral hearing loss disability. Thus, there is no reasonable doubt to be resolved. The veteran may always advance an increased rating claim if the severity of his hearing loss disability should increase in the future. The assignment of an extra-schedular rating was considered in this case under 38 C.F.R. § 3.321(b)(1); however, the record contains no objective evidence that the veteran's bilateral hearing loss disability has resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation, or has necessitated frequent periods of hospitalization. At the August 2007 Board hearing, the veteran testified that he is employed as a probation parole officer, and testified as to the effects his hearing loss has on his employment. His limitations include problems hearing offenders, and problems hearing the judge during court appearances. VA's General Counsel has noted "mere assertions or evidence that a disability interferes with employment" is not enough to warrant extra-schedular consideration. Rather, consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VA O.G.C. Prec. Op. No. 6-96, published at 61 Fed. Reg. 66749 (1996). Such a showing has not been made in this case. Likewise, there is no evidence of record showing that the veteran has ever been hospitalized due to his bilateral hearing loss disability. Accordingly, the Board finds that 38 C.F.R. § 3.321 is inapplicable. In summary, for the reasons and bases expressed above, the Board has concluded that a disability rating in excess of 20 percent is not warranted for bilateral hearing loss disability. Accordingly, the benefit sought on appeal is denied. ORDER The appeal is denied. ____________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs