Citation Nr: 0814725 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-33 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable disability rating for a left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from April 1964 to April 1968 and from December 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2007, the Board denied a rating in excess of 10 percent (the maximum schedular rating) for tinnitus. The Board remanded the hearing loss rating for an audiometric examination. That development has been accomplished and the Board proceeds with its appellate review. FINDING OF FACT The veteran's service-connected left ear hearing loss is manifested by a pure tone threshold average of 40 decibels with discrimination ability of 78 percent (numeric designation III). CONCLUSION OF LAW The criteria for a compensable rating for the service- connected left ear hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The April 2004 letter to the appellant did not tell him to provide any evidence in his possession that pertaining to the claim. However, it did tell him that it was his responsibility to support his claim with appropriate evidence. This would have alerted a reasonable person to send any pertinent evidence. Also, the notice letter did not provide the rating criteria. That was provided in the August 2004 statement of the case. While a VCAA notice cannot be cobbled together from various post decisional documents, the record in this case shows that the veteran understood the rating criteria. Specifically, he made appropriate arguments in his substantive appeal and submitted a private medical report that addresses the rating criteria. The United States Court of Veterans Appeals (Court) has noted that the assignment of disability ratings for hearing impairment are derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The veteran has had an opportunity to participate in the development of his claim, most importantly, but not limited to, an audiometric examination. Consequently, the Board finds that any prejudicial defect in the original notice has been cured. Duty to Assist VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA records and reports of VA examinations. The veteran has submitted the report of a private examination. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Rating Disability ratings 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 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. 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). See also 38 C.F.R. §§ 4.1, 4.2 (2007). The Board has considered all the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). Evaluations of unilateral defective hearing range from noncompensable to 10 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85(d) (2007). The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4, including 38 C.F.R. § 4.85 and Codes 6100 (2007). The manifestations of a nonservice-connected disability may not be used in evaluating a service-connected disability. 38 C.F.R. § 4.14 (2007). Consequently, if a claimant has service-connected hearing loss in one ear and nonservice- connected hearing loss in the other ear, the hearing in the ear having nonservice-connected loss should be considered normal for purposes of computing the service-connected disability rating, unless the claimant is totally deaf in both ears. See VAOPGCPREC 32-97, August 29, 1997. Boyer v. West, 11 Vet. App. 474 (1998). The report of the VA audiology consult, in April 2003, shows that the veteran complained of gradually decreasing hearing in both ears, associated with communication problems. Examination showed his external ear canals to be clear and his tympanic membranes to be intact in both ears. Audiologic evaluation reportedly showed the left ear was within normal limits from 250 through 2000 Hertz, with a moderate sloping to moderately-severe loss from 3000 through 6000 Hertz, and a mild loss at 8000 Hertz. The speech reception threshold was within normal limits. Hearing aids were recommended. None of the findings on this examination approximate any applicable criteria for a compensable rating. The recommendation for hearing aids does not reflect a compensable disability. On the June 2003 VA audiologic examination, the veteran's chief complaint was his tinnitus. (Tinnitus has been assigned the maximum rating). He served as a helicopter mechanic and air crew member and was not able to wear ear protection. Audiologic examination disclosed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Left 10 15 60 70 39 Speech audiometry revealed speech recognition ability of 80 percent in the service-connected ear. These audiologic results produce a numeric designation of "III" for the left ear. When this numeric designation is applied to the rating criteria, the result is a noncompensable rating. 38 C.F.R. Part 4, including § 4.85, and Code 6100 (2007). The veteran submitted the report of a private audiologic evaluation done in January 2005. Audiologic examination disclosed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Left 20 30 60 70 45 Speech audiometry revealed speech recognition ability of 88 percent in the service-connected ear. These audiologic results produce a numeric designation of "II" for the left ear. When this numeric designation is applied to the rating criteria, the result is a noncompensable rating. 38 C.F.R. Part 4, including § 4.85, and Code 6100 (2007). Pursuant to the Board remand, the veteran had another audiometric examination in December 2007. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Left 15 15 55 75 40 Speech audiometry revealed speech recognition ability of 78 percent in the service-connected ear. These audiologic results produce a numeric designation of "III" for the left ear. When this numeric designation is applied to the rating criteria, the result is a noncompensable rating. 38 C.F.R. Part 4, including § 4.85, and Code 6100 (2007). Conclusion While the veteran may feel that the severity of his service- connected left ear hearing loss warrants a higher rating, the objective findings of the trained medical personnel, using established testing equipment and procedures, is substantially more probative. In this case, the medical findings, even those of the private audiologist, support a noncompensable rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board has considered the issues raised by the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007) and whether staged ratings should be assigned. We conclude that the left ear hearing loss has not significantly changed and uniform rating is appropriate in this case. At no time during the rating period has the disability approximated the criteria for a compensable rating. 38 C.F.R. § 4.7 (2007). Other Criteria and Extraschedular Rating The potential application of various provisions of Title 38 of the Code of Federal Regulations (2007) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2007). The Board, as did the RO (see statement of the case dated in August 2004), finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that this service-connected left ear hearing loss has resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A compensable disability rating for a left ear hearing loss is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs