Citation Nr: 0815165 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 03-28 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to September 5, 2007. 2. Entitlement a disability rating higher than 10 percent for bilateral hearing loss since September 5, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The veteran served on active duty from October 1968 to October 1970. This appeal to the Board of Veterans' Appeals (Board) is from a September 2002 and later rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. That September 2002 RO decision granted service connection for bilateral hearing loss and assigned an initial noncompensable (zero percent) rating retroactively effective from December 19, 2001, the date of receipt of the veteran's claim. He appealed for a higher (i.e., compensable) initial 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 the award when his disability may have been more severe than at others). The Board remanded this case in March 2006 to obtain additional treatment records from the VA Medical Center (VAMC) in Salem, Virginia, and to have the veteran examined to assess the current severity of his bilateral hearing loss. And upon completion of that development, the Appeals Management Center (AMC) issued another rating decision in September 2007 increasing the rating for the bilateral hearing loss to 10 percent, but only effective as of September 5, 2007. The veteran 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). So there are now two issues on appeal: (1) whether the veteran is entitled to an initial compensable disability rating for his bilateral hearing loss prior to September 5, 2007; and (2) whether he is entitled to a disability rating higher than 10 percent for his bilateral hearing loss since September 5, 2007. FINDINGS OF FACT 1. Prior to September 5, 2007, the veteran had level I hearing acuity in both ears, i.e., bilaterally. 2. A VA audiological evaluation performed on September 5, 2007, revealed he had level IV hearing acuity in his right ear and level II hearing acuity in his left ear. CONCLUSIONS OF LAW 1. The criteria are not met for an initial compensable disability rating for bilateral hearing loss prior to September 5, 2007. 38 U.S.C.A. § 1155 (West Supp. 2005); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (2007). 2. The criteria also are not met for a disability rating higher than 10 percent for bilateral hearing loss since September 5, 2007. 38 U.S.C.A. § 1155 (West Supp. 2005); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.85-4.87, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is requesting an initial compensable disability rating for his bilateral hearing loss prior to September 5, 2007, and a disability rating higher than 10 percent for this condition since September 5, 2007. In the interest of clarity, the Board will initially discuss whether these claims have been properly developed for appellate review. The Board will then address the claims on their merits, providing relevant VA laws and regulations, the relevant factual background, and an analysis of its decision. I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties 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). Proper notice from VA must inform the claimant of any information and medical or lay 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 pertaining to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent possible, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the veteran is given an opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition, the VCAA notice requirements 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. VCAA notice errors are presumed prejudicial unless VA rebuts this presumption by showing the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the veteran in March 2002, October 2003, April 2006, September 2006, and December 2006, the first of which was sent prior to the RO's initial decision that is the subject of this appeal - the preferred sequence. And although the other notice letters were not sent until after the initial adjudication, the RO and AMC have since gone back and readjudicated the claim in the January 2005 and September 2007 SSOCs to effectively "cure" this timing defect. See Mayfield IV and Prickett, both supra. These letters informed the veteran of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining supporting evidence. He was also asked to submit any relevant evidence and/or information in his personal possession. Moreover, with respect to the Dingess requirements, the veteran was given notice of the type of information and evidence needed to substantiate his downstream increased- rating claims, keeping mind his claim initially arose in the context of him trying to establish his underlying entitlement to service connection (since granted). The premise of his downstream claims for higher disability ratings is that his bilateral hearing loss is more severe than is reflected by his current ratings. It is therefore inherent that he had actual knowledge of the disability rating element of his claims. In addition, he was provided notice of the type of evidence necessary to establish a downstream effective date if a higher rating is granted. VA also fulfilled its duty to assist the veteran by obtaining all relevant evidence in support of his increased- compensation claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO and AMC obtained all relevant medical records identified by the veteran and his representative, including the records from the Salem VAMC that the Board directed the AMC to obtain when remanding this case in March 2006. Moreover, VA audiological evaluations were performed in September 2002, July 2003, and September 2007, the most recent as also directed in the Board's remand, all of which are adequate for rating purposes. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or Court. II. Merits of the Claim As noted, the two issues on appeal involve: (1) entitlement to an initial compensable rating for the bilateral hearing loss prior to September 5, 2007; and (2) entitlement to a disability rating higher than 10 percent for this condition since September 5, 2007. For the reasons set forth below, the Board finds that the preponderance of the evidence is against the veteran's claims. Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. See 38 C.F.R. § 4.3. In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical, meaning nondiscretionary, application of the Rating Schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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 Roman numeral. Each ear will be evaluated separately. A. Prior to September 5, 2007 Applying the above criteria to the facts of this case, the Board finds that the preponderance of the evidence is against an initial compensable rating for the veteran's bilateral hearing loss for the entire period prior to September 5, 2007. In particular, two audiological evaluations provide evidence against his claim for a higher rating. The veteran had a VA audiological evaluation in September 2002 to determine the severity of his hearing loss. Audiometric testing in the right ear revealed puretone thresholds of 5, 60, 65, and 70 decibels at the 1,000, 2,000, 3,000, and 4,000 levels, respectively, for an average of 50 decibels. Testing in the left ear at those same levels showed puretone thresholds of 5, 35, 60, and 60 decibels for an average of 40 decibels. Speech discrimination was 92 percent in the right ear and 96 percent in the left ear. Another VA audiological evaluation performed in July 2003 revealed, in the right ear, puretone thresholds of 5, 65, 65, and 65 decibels at the 1,000, 2,000, 3,000, and 4,000 levels, respectively, for an average of 50 decibels. Testing in the left ear at those same levels showed puretone thresholds of 0, 35, 60, and 55 decibels for an average of 38 decibels. Speech discrimination was 92 percent in each ear. Applying the criteria found in 38 C.F.R. § 4.87 at Table VI to these results shows the veteran's hearing loss warrants a noncompensable rating. The findings in both reports yield a numerical designation of no greater than level I for each ear (between 0 and 50 percent average puretone decibel hearing loss, with at least 92 percent speech discrimination). Entering the category designations for each ear into Table VII produces a disability percentage evaluation of zero percent. The Board thus finds that his bilateral hearing loss was properly rated at the noncompensable level for the period prior to September 5, 2007. B. Since September 5, 2007 The report of a more recent VA audiological evaluation on September 5, 2007, shows the veteran's bilateral hearing loss has worsened, now meeting the criteria for a higher 10 percent rating. Testing of his right ear revealed puretone thresholds of 15, 65, 75, and 75 decibels at the 1,000, 2,000, 3,000, and 4,000 Hz frequencies, respectively, for an average of 58 decibels. Testing of his left ear at those same frequencies showed puretone thresholds of 5, 65, 70, and 70 decibels for an average of 53 decibels. Speech discrimination was 82 percent in the right ear and 90 percent in the left ear. These findings yield a numerical designation of level IV for the right ear and level II for the left ear. Entering these category designations for each ear into Table VII correlates to a disability percentage evaluation of 10 percent. Thus, the evidence shows the RO properly rated the veteran's bilateral hearing loss as 10 percent disabling as of September 5, 2007. C. Conclusion The veteran's bilateral hearing loss was no more than 0- percent disabling prior to September 5, 2007, and has not been more than 10-percent disabling since that date. The fact that the AMC increased his rating to the 10-percent level, effective as of that date, is tantamount to a "staged" rating reflecting the increase in severity of his disability during the pendency of his appeal. See Fenderson, 12 Vet. App. at 125-26. The Board reiterates that disability ratings for hearing impairment are derived purely by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann, 3 Vet. App. at 349. Therefore, for the reasons stated above, the Board finds that the preponderance of the evidence is against an initial compensable disability rating for the veteran's bilateral hearing loss prior to September 5, 2007, and against a disability rating higher than 10 percent since that date. Accordingly, the appeal is denied. ORDER The claim for an initial compensable disability rating for bilateral hearing loss prior to September 5, 2007, is denied. The claim for a disability rating higher than 10 percent for the bilateral hearing loss since September 5, 2007, also is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs