Citation Nr: 0815183 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 04-30 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable disability evaluation for service-connected hearing loss in the right ear. (The veteran's claim for entitlement to an evaluation in excess of 10 percent for lumbar muscle strain, with history of low back pain with narrowing of the L5-S1 intervertebral disc space and osteophyte, prior to November 25, 1998, and entitlement to an evaluation in excess of 20 percent for lumbar muscle strain, with history of low back pain with narrowing of the L5-S1 intervertebral disc space and osteophyte, prior to September 26, 2003, will be the subject of a separate decision). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from June 1972 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The veteran's hearing loss is manifested by level I hearing in his right ear and is noncompensable. 2. The veteran's service-connected right ear hearing loss disability has not been shown to produce an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization sufficient to render impractical the application of the regular schedular standards. CONCLUSION OF LAW A compensable evaluation for service-connected hearing loss in the right ear is not warranted. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.321, 3.383, 4.85, 4.86 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran originally sought entitlement to service connection for a bilateral hearing loss disability in 1985; his claim was denied in August 1986. He reopened his claim in January 1988. He was eventually granted service connection for hearing loss of the right ear by a Board decision dated in July 1991. The Board also held that new and material evidence had not been received to reopen a claim for service connection for hearing loss in the left ear. The RO issued a rating decision in December 1991. The veteran was assigned a noncompensable disability evaluation for his hearing loss in the right ear. The veteran attempted to establish service connection for hearing loss in the left ear but it was again denied by the Board in April 1996. He was last denied a compensable disability evaluation for his right ear hearing loss in February 1999. The veteran submitted his current claim for a compensable disability evaluation in September 2003. He included a copy of an undated outpatient audiogram, in chart form, that was dated June 30, 2003. VA outpatient records reflect that the veteran was evaluated in the audiology clinic at the VA medical center (VAMC) in Biloxi, Mississippi, in July, August and September 2003, respectively. An entry from July 2003 said the veteran was seen in June 2003, and tested, for the first time since 1992. He was found to be a candidate for hearing aids. He was issued bilateral hearing aids in August 2003. An entry from September 2003 noted that the veteran reported that he had significant improvement with his hearing aids. As noted above, the veteran submitted an audiological evaluation dated in June 2003 that he stated was conducted by VA. Audiological findings were included in the evaluation; however, the results were uninterpreted. The Board may not interpret graphical representation of audiometric data. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). More importantly, there is no indication of the use of Maryland CNC or that the person conducting the test was a state licensed audiologist. 38 C.F.R. § 4.85(a). Consequently, the Board is unable to consider these examination results in its decision. The veteran was afforded a VA audiology examination October 2003. The veteran complained of bilateral hearing loss that was worse in his right ear. He said that he needed to have the television loud and people had to speak loud for him to hear them when he was not wearing his hearing aids. The veteran said that his hearing loss caused him to have headaches in regard to how it affected his daily life. He was not employed. The results of audiometric testing was as follows HERTZ 1000 2000 3000 4000 RIGHT 15 30 35 40 LEFT 20 30 50 45 The average decibel losses were 30 in the right ear and 37 in the left ear. The veteran had a speech discrimination score of 96 percent for each ear. The veteran's claim was denied in January 2004. He submitted his notice of disagreement in February 2004. He said his hearing loss was getting worse. He asked that he be afforded a VA examination at the VAMC in Jackson. The veteran was issued a statement of the case (SOC) in July 2004. He perfected his appeal in July 2004. He said that he wanted a greater percentage for his right ear hearing loss. He said he had undergone examination at the VAMC in Jackson and this proved his claim and that he had provided sufficient evidence to support his claim. He said that his hearing had deteriorated to the point he could not hear other cars when he was driving or hear other people in the same room. The veteran said that his hearing aids had not increased his hearing at all. The veteran had a separate appeal for an increased evaluation for a back disability that was appealed to the United States Court of Appeals for Veterans Claims (Court). There was little development of the issue on appeal from the time he perfected his appeal in July 2004 until a VA examination in May 2007. The veteran was issued a supplemental statement of the case (SSOC) in May 2006. Associated with the claims folder were VA treatment records for the period from September 2003 to May 2007. The records do not reflect any evaluation of his hearing loss in a clinical setting after September 2003. Moreover, none of the many entries note any complaints involving his hearing loss such as it getting worse or how it affected his life, caused him problems, or anything similar. The veteran was afforded a VA audiology examination in May 2007. He reported on his past history of how he incurred his hearing loss in service. The results of audiometric testing was as follows HERTZ 1000 2000 3000 4000 RIGHT 20 40 45 45 LEFT 15 35 45 45 The average decibel losses were 38 in the right ear and 35 in the left ear. The veteran had a speech discrimination score of 96 percent for the right ear and 86 percent for the left ear. The veteran was issued a supplemental statement of the case (SSOC) in June 2007. He was informed that his claim for a compensable disability evaluation for his service-connected right ear hearing loss remained denied. II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. 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 (2007). If the evidence of record supports it, staged evaluations may also be assigned for different periods over the course of the pendency of the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). Evaluations of defective hearing range from noncompensable to 100 percent. This is 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 of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). As noted above, the veteran is service-connected for hearing loss in only one ear. Prior to the veteran's claim in September 2003, this circumstance was evaluated under the paired organ exception. Where there is total deafness in one ear that is service-connected, and total deafness in the nonservice-connected ear, the veteran shall be paid a rate of compensation as if the combination of the two disabilities were the result of service-connected disability. See 38 U.S.C.A. § 1160(a)(3) (West 1991); 38 C.F.R. § 3.383(a) (2002); VAOPGCPREC 32-97. The Veterans Benefits Act of 2002, Pub. L. No. 107-330, section 103, amended 38 U.S.C.A. §1160(a)(3) in December 2002, by deleting the requirement for total deafness in the service-connected ear and inserting deafness compensable to a degree of 10 percent or more. The amendment also deleted the words total deafness for the nonservice-connected ear and inserted the word deafness. See 38 U.S.C.A. § 1160(a)(3)(West Supp. 2007). VA promulgated a change to 38 C.F.R. § 3.383(a)(3) to implement the statutory change in August 2004. The effective date of the change is December 6, 2002. See 69 Fed. Reg. 48,148-48,150 (Aug. 9, 2004). The rule change noted that the term deafness was not defined. Accordingly, VA established that in order to apply the paired organ exception, there must be a service-connected hearing impairment in one ear to a degree of 10 percent or more. As to the nonservice-connected ear, VA determined that there must be hearing loss, as defined by 38 C.F.R. § 3.385, to constitute a hearing impairment as contemplated by the statute. The result of the amendment is that a veteran must have a service-connected hearing impairment of 10 percent or more, and a hearing impairment in the nonservice-connected ear that meets the criteria at 38 C.F.R. § 3.385 before both ears may be considered in deriving the level of disability. If the hearing loss of the service-connected ear is rated at less than 10 percent, then the hearing loss of the nonservice- connected ear is still considered to be Level I, no matter the level of hearing impairment. See 69 Fed. Reg. 48,149- 48,150; 38 C.F.R. § 4.85(f) (2007). The statutory change was made prior to the veteran's current claim in September 2003. The implementing regulation was issued after the claim was received; however, the regulatory change was not substantive in nature. A review of the October 2003 audiometric study, and using the speech discrimination scores from the audiogram, correlates to Level I hearing in the right ear. See 38 C.F.R. § 4.85, Table VI (2007). The right ear is also noncompensable. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100 (2007). The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The veteran's left ear hearing loss does meet the requirements for a hearing loss disability under 38 C.F.R. § 3.385. However, as the veteran does not have at least a 10 percent disability for his service-connected right ear, consideration of the level of hearing loss in the left ear is not allowed. See 38 U.S.C.A. § 1160(a)(3); 38 C.F.R. § 3.383(a)(3). The same is true in reviewing the audiometric study from May 2007. The veteran has a Level I hearing loss in the right ear based on his average decibel loss and speech discrimination score, which is noncompensable. The testing results for his left ear cannot be used in determining the level of disability. The Board has also considered the provisions under 38 C.F.R. § 4.86 (2007) for exceptional patterns of hearing impairment. However, the veteran does not have puretone threshold of 55 decibels, as reflected by either the October 2003 or May 2007 VA examinations, at the designated frequencies such as to require application of 38 C.F.R. § 4.86(a). Further, neither the October 2003 nor the May 2007 audiograms demonstrate the requisite 30-decibel loss at 1,000 Hertz and 70 decibel or more loss at 2,000 Hertz to warrant consideration of 38 C.F.R. § 4.86(b). The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2007). The veteran has not presented any evidence, other than his several statements, that his particular service-connected hearing loss disability of the right ear results in a unique disability that is not addressed by the rating criteria. Specifically, there is no evidence of frequent hospitalization or marked interference with employment that would suggest that the veteran is not adequately compensated by the regular schedular standards. The veteran has not been employed at any time during the pendency of this appeal and he has not alleged or provided evidence that his hearing loss disability has interfered with any effort to find employment. The objective evidence of record demonstrated a significant improvement in the veteran's hearing with his hearing aids in September 2003. There is no evidence of treatment for his hearing loss since that time, to include maintenance on the hearing aids or replacements. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Finally, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2007). The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the October 2003 examiner noted that the only effect on the veteran's daily life was his complaint of headaches. As previously stated, the veteran was not employed at that time so there was no impact on his occupational functioning. The May 2007 examiner did not record any complaints by the veteran of how his hearing loss affected him. Thus, the October 2003 examination report did include information concerning how the veteran's hearing loss affects his daily functioning while the May 2007 examination report did not. However, the veteran has not alleged any prejudice caused by a deficiency in the examination. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting a compensable evaluation for the veteran's hearing loss of the right ear. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2007)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. During the pendency of this appeal, the Court, issued a decision in March 2006 in the case of Dingess 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 veteran's claim was received in September 2003. The RO wrote to him in October 2003. The veteran was apprised of the evidence needed to substantiate his claim for an increased evaluation, namely that his hearing loss had increased in severity. He was informed of a number of possible sources and types of evidence that would be of benefit in substantiating his claim. He was also informed of the evidence that VA would obtain, and of the evidence that he should submit or request VA's assistance in obtaining. Finally, the veteran was asked to submit any evidence of treatment that he had. The RO wrote to the veteran in November 2003. He was informed that he had until October 2004 to submit the evidence referenced in the RO's letter of October 2003. The veteran responded in November 2003. He said he had nothing further to submit and that all evidence had been sent to the RO. He asked that all of his medical records from VAMC Jackson be included in the claims folder in support of his claim. The RO denied the veteran's claim in January 2004. The veteran submitted his notice of disagreement in February 2004. He contended his disability was worse. He also asked that he be provided with a SOC. The SOC was issued in July 2004. The veteran perfected his appeal that same month. He again argued that he deserved a higher disability evaluation. He noted he had been examined and felt that the examination supported his claim. He provided information regarding how his disability affected him. The veteran was provided the notice required by Dingess in March 2006. He did not respond to that letter. He was issued a SSOC in May 2006. The veteran was afforded a VA examination in May 2007. His claim was re-adjudicated and a SSOC issued in June 2007. In addition to the notice requirements referenced supra, the Court issued another decision regarding the content of VCAA notice during the pendency of this appeal. In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court noted that some increased evaluation claims would require more specific notice than others. The Court acknowledged that some cases would only require notice for the veteran to show how their disability had gotten worse, and other cases would require information on exactly how the disability had gotten worse, and how it affected the veteran's employment and daily life. The veteran has not disputed the contents of the VCAA notice in this case. A notice error is presumed prejudicial to the claimant unless it is demonstrated that (1) any defect in notice was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice provided what was needed, or (3) that a benefit could not possibly have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d. 881, 889-891 (Fed. Cir. 2007). To the extent there is any deficient notice in this case, the presumption of any prejudice is overcome. The veteran had actual knowledge in this case. He was able to tell his examiners how his disabilities affected him in his daily activities. He has also submitted similar statements to the RO. Moreover, the veteran has not been prohibited from meaningful participation in the adjudication of his claim such that it affects the essential fairness of the adjudication. He submitted his notice of disagreement and substantive appeal wherein he expressed his disagreement with how his disability had been evaluated and why he deserved an increased evaluation. See Sanders, 487 F.3d. at 889. In addition, based on the notices provided to him during the course of the claim, including the statement of the case, which provided notice of the criteria for a higher rating, a reasonable person would be expected to understand what criteria need to be met to receive an increased rating. All available evidence pertaining to the veteran's claim has been obtained. The evidence developed in this claim included VA examination reports from October 2003 and May 2007. VA treatment records for the period from August 2000 to May 2007 where associated with the claims folder. The veteran did not identify any additional records to be obtained that were pertinent to his claim. He did not choose to have a hearing in this case. The Board finds that VA has satisfied its duty to notify and assist. The veteran was afforded VA examinations to assess his current level of disability. He has not identified any other pertinent evidence, not already of record, which would be needed to be obtained for a fair disposition of this appeal. The Board is also unaware of any such evidence. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a compensable evaluation for service-connected right ear hearing loss is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs