Citation Nr: 0815018 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-35 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a disability rating higher than 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Ashley D. McClure, Private attorney WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from March 1968 to March 1970. This appeal to the Board of Veterans' Appeals (Board) is from a January 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the veteran's claim for a higher (i.e., compensable) rating for his left ear hearing loss. At the time, only the hearing loss in that ear was service connected. In November 2005, to support his claim, the veteran testified at a hearing before the Board - ostensibly regarding his service-connected left ear hearing loss. However, his testimony also raised an additional claim for service connection for right ear hearing loss, actually, a petition to reopen this previously denied claim since the RO already had considered and denied it in January 1998. Since the new claim concerning the right ear hearing loss was inextricably intertwined with the claim on appeal pertaining to the rating for the left ear hearing loss, the Board remanded this case to the RO in June 2006 via the Appeals Management Center (AMC) to have the AMC adjudicate the right ear claim - as the outcome of that decision, in turn, could potentially have an impact on whether the veteran's hearing loss was rated as unilateral (meaning only service-connected in his left ear) versus bilateral (meaning service connected in both ears). See, e.g., Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together.) An October 2006 decision by the AMC, on remand, increased the rating for the left ear hearing loss to 10 percent, retroactively effective from November 13, 2003, the date of VA compensation examination revealing greater hearing loss in this ear. The Board again remanded this case in February 2007 for failure to comply with the Board's prior, June 2006, remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board noted the AMC had not adjudicated the petition to reopen the claim for service connection for right ear hearing loss, reiterating the outcome of that claim could potentially dictate whether VA considers the veteran's hearing loss as unilateral or bilateral. Following that second remand, the AMC issued a decision in July 2007 granting service connection for hearing loss in the right ear, in turn meaning the veteran now had service- connected bilateral (i.e., right and left ear) hearing loss. The AMC assigned a 10 percent rating for the bilateral hearing loss retroactively effective from September 8, 2003, the date of receipt of the veteran's claim for a higher rating. He has since continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Since the judge that presided over the veteran's November 2005 hearing has since retired from the Board, the Board sent the veteran a letter in January 2007 informing him that he could have another hearing with the Board before a judge that will ultimately decide his appeal. See 38 C.F.R. § 20.707. The veteran responded later in January 2007 that he does not want another hearing. FINDING OF FACT At the very worst, the results of the veteran's fairly recent October 2007 VA compensation examination, on remand, indicates he has Level V hearing in his left ear and Level III hearing in his right ear. CONCLUSION OF LAW The criteria are not met for a rating higher than 10 percent for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code (DC) 6100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the RO and AMC in November 2003, June 2006, March 2007 and September 2007 (1) informed the veteran of the information and evidence not of record that is necessary to substantiate his claim; (2) informed him of the information and evidence that VA will obtain and assist him in obtaining; (3) informed him of the information and evidence he is expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states 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: (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 AMC complied with the requirements in Dingess, on remand, when it sent VCAA notice letters in June 2006, March 2007 and September 2007 discussing the downstream disability rating and effective date elements of the claim and then went back and readjudicated the claim in the January 2008 supplemental statement of the case (SSOC). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For an increased-rating claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate the 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 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. Id. Additionally, 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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. Vazquez-Flores, slip op. at 5-6. In this case at hand, the Board finds that the AMC's September 2007 notice letter, along with the SOC issued in September 2004 and the SSOCs issued in November 2006 and January 2008, comply with the Court's holding in Vazquez-Flores. For example, the September 2007 letter states: As we consider your claim, you may submit evidence showing that your service-connected bilateral hearing loss [has] increased in severity. This evidence may be a statement from you doctor, containing the physical and clinical findings, the results of any laboratory tests or x-rays, and the dates of examinations and tests. You may also submit statements from other individuals who are able to describe from their knowledge and personal observations in what manner your disability has become worse. In addition to this letter, the September 2004 SOC and the January 2008 SSOC contain the applicable rating criteria. Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). The veteran's representative recently submitted a statement in March 2008 evidencing actual knowledge of the requirements for receiving a rating higher than 10 percent for the bilateral hearing loss. Indeed, the representative made specific mention of how the disability affects the veteran's quality of life and employment, noting that it hinders the performance of his various responsibilities as a pastor. The representative also argued that the most recent VA compensation examination in October 2007 was inadequate, primarily because it did not fully take into account the true severity of the veteran's hearing loss - especially in terms of the impact background noise, etc., has on his day-to-day functioning. See Martinak v. Nicholson, No. 05-1195 (U. S. Vet. App. August 23, 2007) (indicating these are valid considerations when determining the appropriate rating). So the veteran and his representative are well aware of the requirements for receiving a higher rating and, as will be explained, the report of that October 2007 audiometric evaluation provides sufficient information, including in these respects, to make this determination. VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claim under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC obtained all pertinent medical records the veteran and his representative identified. In addition, as mentioned, VA furnished the veteran compensation examinations to determine the severity of his bilateral hearing loss disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. Whether the Veteran is Entitled to a Disability Rating Higher than 10 Percent for his Bilateral Hearing Loss VA determines ratings for service-connected disabilities by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, VA assigns the higher evaluation if the disability more closely approximates the criteria for the higher rating; otherwise, VA assigns the lower rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, VA resolves any reasonable doubt in favor of the veteran. 38 C.F.R. § 4.3. Also, VA must take into account the veteran's entire medical history and circumstances when determining the appropriate rating. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Modern pure tone audiometry testing and speech audiometry utilized in VA audiological clinics are well adapted to evaluate the degree of hearing impairment accurately. VA uses standardized methods so the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. A mechanical, nondiscretionary application of the rating criteria determines the assigned evaluation on the basis of certified test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Rating Schedule provides a table for rating 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 percentage of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hz, divided by four. See 38 C.F.R. § 4.85. VA uses Table VII 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. As alluded to, the AMC furnished a VA compensation examination in October 2007, on remand, to determine the severity of the veteran's bilateral hearing loss. Audiometric findings indicated he had pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 45 45 60 LEFT 40 40 80 80 95 Hence, the veteran had an average decibel loss of 48 in his right ear and 74 in his left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 76 percent in the left ear. These findings, in turn, yield a numerical designation no greater than III for the right ear and V for the left ear. Entering these category designations for each ear into Table VII correlates to a 10 percent rating under DC 6100. 38 C.F.R. § 4.85, Table VII. It is worth repeating that ". . . disability ratings for hearing impairment are derived by a mechanical [meaning nondiscretionary] application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). And, here, the mechanical application only establishes a 10 percent disability rating. In addition, these VA audiometric examination results did not show an exceptional pattern of hearing impairment so as to warrant application of the special provisions of 38 C.F.R. § 4.86(a) and (b). That is to say, the veteran did not have a puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) of 55 decibels or more to warrant application of § 4.86(a), or a puretone threshold of 30 decibels or less at 1,000 Hertz and of 70 decibels or more at 2,000 Hertz to warrant application of § 4.86(b). In support of his claim, the veteran submitted lay statements from deacons who work at the same church and two of his parishioners. These undated statements indicate the veteran constantly asks people to repeat what they have said. These statements are competent to attest the veteran has difficulty hearing conversational speech, because this is capable of lay observation. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (lay persons are competent to provide evidence of observable events). See also 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See, too, Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). This lay testimony, however, is insufficient to establish the level of the veteran's hearing loss disability according to the established standards set forth in § 4.85(a). And as the preponderance of the evidence is against the veteran's claim, the doctrine of reasonable doubt is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. At no time since one year prior to filing this claim has the veteran's hearing loss been more than 10-percent disabling, either when it was only service connected in his left ear, as unilateral, or even since he established his additional entitlement to service connection for right ear hearing loss to make it a bilateral disability. The results of his earlier July 2001, August 2001, and November 2003 VA audiometric evaluations do not show greater hearing loss than was indicated during his most recent October 2007 evaluation. So the Board cannot "stage" his rating. See Fenderson v. West, 12 Vet. App. 119 (1999) (when a veteran timely appeals his initial rating, VA must consider whether his rating should be "staged" to compensate him for times since the effective date of his award when his disability may have been more severe than at others). See also Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007) (recently extending this practice of contemplating a "staged" rating to cases even involving already established ratings where the veteran wants a higher, i.e., increased evaluation). Finally, there is no evidence of exceptional or unusual circumstances to warrant referring this case to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). As he indicated during his hearing in November 2005, and as his representative recently reiterated in the March 2008 statement, the veteran's hearing loss disability has a noticeable affect on the performance of his pastoral functioning, including prayer requests and visiting those who are sick. However, his disability does not markedly interfere with his ability to work - meaning above and beyond that contemplated by his schedular rating. See 38 C.F.R. § 4.1 indicating that, 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. Furthermore, he has not been frequently hospitalized for evaluation or treatment of his hearing loss; instead, his evaluation and treatment has been entirely as an outpatient, not inpatient. So extra- schedular consideration is not warranted in this particular instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for a disability rating higher than 10 percent for the bilateral hearing loss is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs