Citation Nr: 1007341 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-03 703 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an initial, compensable rating for bilateral hearing loss, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to June 1996. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2005 rating decision in which the RO, inter alia, granted service connection and assigned an initial, noncompensable (0 percent) rating for bilateral hearing loss, effective January 10, 2005. In August 2006, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. A statement of the case (SOC) was issued in December 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2007. In April 2009, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge in Washington, DC; a transcript of that hearing is of record. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for bilateral hearing loss, the Board has characterized the issue on appeal in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In June 2009, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence and for consideration of a higher rating on an extra-schedular basis. After completing the requested development, the AMC continued to deny the claim (as reflected in a January 2010 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. As a final preliminary matter, the Board notes that, in an April 2008 rating decision, the RO granted service connection and assigned an initial 10 percent rating for bilateral tinnitus, effective March 21, 2005. During the April 2009 hearing, the Veteran asserted that he should be awarded an increased rating for tinnitus, based on a 10 percent rating for each ear, and that his disability award should be effective from the date of his retirement from service in 1996. Similarly, he argued that the disability award for bilateral hearing loss should be effective from the date of his retirement. The RO has not addressed a claim for an increased rating for bilateral tinnitus, or claims for earlier effective dates for the grants of service connection for bilateral hearing loss or bilateral tinnitus. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Since the January 10, 2005 effective date of the grant of service connection, audiometric testing has revealed no worse than Level I hearing in the right ear and Level I hearing in the left ear. 3. Since the January 10, 2005 effective date of the grant of service connection, the Veteran's bilateral hearing loss has not been shown to result in marked interference with employment or frequent hospitalization, or to otherwise present so exceptional or unusual a disability picture as to render impractical the application of the regular schedular standards for rating the disability. CONCLUSION OF LAW The criteria for an initial, compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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 her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The December 2006 SOC and a May 2008 letter included the pertinent rating criteria for evaluating hearing loss. In an October 2008 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the December 2006 SOC and the May and October 2008 letters, and opportunity for the Veteran to respond, the January 2010 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of March 2005, December 2007, and October 2009 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's April 2009 Board hearing, along with various written statements provided by the Veteran, and by his representative, wife, and friend, on his behalf. The Board also finds that no additional RO action to further develop the record is warranted. In this regard, in the June 2009 remand the Board instructed that an ear, nose and throat physician examine the Veteran; however, in October 2009, the Veteran was examined by an audiologist. The Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). In this case, the Board's instructions have been substantially complied with as the examiner, an audiologist, performed the requested review and offered an opinion about a disorder within his area of expertise. The Board notes that in June 2009, the Board instructed that the graphical display of a private audiogram be converted to the appropriate numerical form. Instead, the audiologist reviewing the audiogram noted what was reflected by the graph-mild to moderately-severe hearing loss above 1500 Hertz (Hz) in the right ear and mild to severe hearing loss above 1500 Hz in the left ear. These are the same findings the audiologist made after testing in October 2009. While the audiologist did not convert the graph to numerical form, he did interpret the graph, which the Board finds to substantially comply with the remand directive. Additionally, the Board has reviewed the private audiogram and notes that on its face, the graph does not show the level of hearing loss required for a higher schedular rating. Accordingly, a remand to attempt to have the graphical results converted to numerical results, would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the veteran, and is, thus, unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation. Ratings for hearing impairment range from noncompensable to 100 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. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86 (2009). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) 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 pure tone 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Further, where, as here, the question for consideration is entitlement to a higher initial rating, evaluation of the pertinent evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Considering the pertinent evidence in light of the above- noted legal authority, the Board finds that an initial, compensable rating for the Veteran's bilateral hearing loss is not warranted at any time since the January 10, 2005, effective date of the grant of service connection. During a March 2005 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 30 50 55 LEFT 15 40 60 60 Speech audiometry revealed speech recognition ability of 92 percent in each ear. The audiologist stated the results showed normal hearing from 250 to 2000 Hz with a mild-to- moderately severe sensorineural hearing loss from 3000 to 8000 Hz in each ear. On December 2007 VA audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 35 45 55 LEFT 10 35 50 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 100 percent in the left ear. On October 2009 VA audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 30 45 55 LEFT 10 35 50 60 Speech audiometry revealed speech recognition ability of 96 percent in each ear. The audiologist stated the results on his evaluation, and during a private evaluation in January 2007, both showed mild to moderately-severe hearing loss above 1500 Hz in the right ear and a mild to severe hearing loss above 1500 Hz in the left ear. The Board notes that even when considering the worst reported pure tone thresholds along with the worst reported speech discrimination testing results, a compensable rating for bilateral hearing loss is not warranted. The highest pure tone thresholds were reported on March 2005 VA audiological evaluation. The average pure tone thresholds were 37.5 decibels in the right ear and 43.75 decibels in the left ear. The lowest speech discrimination scores were also reported at the March 2005 VA audiological evaluation; 92 percent in each ear. The Board recognizes that a lower score for the left ear was noted during a January 2007 private audiological evaluation; however, there is no indication that this testing was performed using the Maryland CNC controlled speech discrimination test, as required by 38 C.F.R. § 4.85(a). Applying the method for evaluating hearing loss to the results of the March 2005 audiological evaluation (the testing showing the worst results), the audiometric testing reveals Level I hearing in each ear, based on application of the reported findings to Table VI. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Because these results do not reveal an exceptional pattern of hearing loss in either ear, Table VIA is not for application. 38 C.F.R. § 4.86. The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss, however, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that the Veteran's service-connected bilateral hearing loss reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited to and discussed in the January 2010 SSOC). The Board has also considered assignment of a higher rating on an extra-schedular basis. The threshold factor for extra- schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the evidence adequately addresses the functional effects resulting from the Veteran's hearing loss. In the Veteran's January 2005 claim, he noted that he has trouble hearing normal conversation. During the March 2005 examination, he reported difficulty hearing and understanding normal conversations in the presence of background noise. In the August 2006 NOD, the Veteran reported that he did not state that finding employment was a problem. In a January 2007 letter, the Veteran's friend noted that the Veteran's hearing impairment affected his driving, work, and home life. In a February 2007 letter, the Veteran's wife reported that the Veteran does not distinguish normal voice conversations and cannot hear things like watch alarms, kitchen timers, birds chirping, crickets, and the like. During his April 2009 hearing, the Veteran testified that he has trouble hearing if multiple people are taking, that he has to plug one ear while talking on the phone, and that he has a headset for his television to cut out external noise. Regarding effects on employment, the Veteran stated that he has trouble with phone and in-person conversations with customers. His wife added that sometimes he misses whole sentences. When asked about significant effects caused by the Veteran's hearing loss, a VA examiner commented that the Veteran's hearing loss can interfere with communication. In this case, the rating criteria only take into account the level of hearing loss and do not specifically address the affect of other background noise, or the affect on communication caused by the hearing loss. However, even if the Board were to determine that the Veteran's disability picture is not adequately contemplated by the rating schedule, there simply is no showing that his bilateral hearing loss has resulted in marked interference with employment. In fact, the Veteran indicated that he has not had any problems obtaining employment. Although the Veteran has reported some problems communicating at work, there is no evidence or allegation that the Veteran's bilateral hearing loss has negatively impacted or compromised his employability in any tangible way. As such, the Board finds that the Veteran's service-connected bilateral hearing loss has not been shown to markedly interfere with employment. There also is no evidence that, at any point since January 10, 2005, the Veteran's bilateral hearing loss has necessitated frequent periods of hospitalization. Thus, the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's bilateral hearing loss, pursuant to Fenderson, and that the claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, that doctrine is not for application in this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App 49, 54-56 (1990). ORDER An initial, compensable rating for bilateral hearing loss is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs