Citation Nr: 1007385 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-11 228A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Ms. M.L. ATTORNEY FOR THE BOARD J Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Seattle, Washington that granted service connection for bilateral hearing loss with a non-compensable rating (zero percent), effective November 9, 2004. In October 2009, a Travel Board hearing was held in Seattle, Washington, and a transcript of the proceeding has been associated with the claims file. FINDING OF FACT On VA examination in April 2005 and August 2009, the Veteran had level I hearing bilaterally. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss are not met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for a compensable initial rating for bilateral hearing loss, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). The 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's service treatment records and relevant VA treatment records and private treatment records have been associated with the claims file. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with a VA examination in April 2005 relating to his claim for service connection for bilateral hearing loss and in August 2009 relating his claim herein for a higher initial rating. The Board finds the above VA examination reports to be thorough, complete, and adequate upon which to base a decision with regard to this claim. The VA examiners had an opportunity to personally interview and examine the Veteran, and their reports provide the information necessary to evaluate the Veteran's disability under the applicable rating criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports a claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2009). A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2009). When a veteran timely appeals an initial rating for a service- connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 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, Tables VI and VII, Diagnostic Code 6100 (2009). The ratings for disability compensation for hearing loss are generally determined by the mechanical application of the criteria in Table VI and Table VII (except, for example, to the extent of extraschedular consideration). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a) (2009). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2009). As noted above, the May 2005 rating decision granted service connection for bilateral hearing loss and rated it as non compensable under Diagnostic Code 6100, effective from November 9, 2004. See 38 C.F.R. § 4.85 (2009). The Veteran seeks a higher initial rating. An April 2005 VA audiological summary report of examination reflects pure tone thresholds as follows: 1000 2000 3000 4000 Avg RIGHT 15 20 45 50 33 LEFT 20 20 55 60 39 Speech recognition ability (using Maryland CNC word lists) was measured as 100 percent in both ears. Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level I hearing in both ears. Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level I hearing in both of the Veteran's ears corresponds to a noncompensable disability rating. An August 2009 VA audiological summary report of examination reflects pure tone thresholds as follows: 1000 2000 3000 4000 Avg RIGHT 30 40 45 50 41 LEFT 30 40 55 60 46 Speech recognition ability (using Maryland CNC word lists) was measured as 96 percent for both ears. Using Table VI of 38 C.F.R. § 4.85, these audiological testing results correlate to level I hearing in both ears. Using Table VII (Diagnostic Code 6100) of 38 C.F.R. § 4.85, the combination of level I hearing in both of the Veteran's ears corresponds to a noncompensable disability rating. The Board acknowledges that subsequent August 2009 VA treatment records reflect that an outpatient audiological evaluation was performed at the VA medical center (VAMC) after the above August 2009 VA examination. The Board notes, however, that the results of this evaluation are not completely interpreted, and the Board is not competent to interpret graphical representations of audiometric data. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Furthermore, the report does not reflect that the Maryland CNC word lists were used in determining speech recognition. See 38 C.F.R. 4.85(a) (2009). Thus, even if the interpreted results of the pure tone thresholds were obtained, because the audiologist never certified that use of speech recognition scores was not appropriate for the Veteran due to language difficulties, inconsistent speech discrimination scores, etc., the Veteran cannot be rated using the audiological data collected during this particular evaluation. See 38 C.F.R. 4.85(a) and (c) (2009). There is no objective evidence of record to indicate that the application of the rating criteria, as established, is inadequate to rate the Veteran's hearing loss disability. While the Board acknowledges certain lay statements submitted by the Veteran around the time of the October 2009 hearing from his daughter, sister, and a friend and co-worker in which they report observing the Veteran having difficulty hearing and understanding conversational speech, the Board notes that, as noted above, the ratings for disability compensation for hearing loss are generally determined by the mechanical application of the criteria in Table VI and Table VII (except, for example, to the extent that extraschedular rating is required). See Lendenmann, supra. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating on a schedular basis. Additionally, there is no evidence showing that an increase would be warranted on an extraschedular basis for the Veteran's bilateral hearing loss. Specifically, there is no evidence showing an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2009). The threshold factor for extraschedular 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 evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2009). \ In this regard, the Board notes that the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,200 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. Id. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17,295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations in the presence of background noise is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty, particularly in settings with background noise, have been considered under the numerical criteria set forth in the rating schedule. Thus, the Board determines that the schedular rating criteria adequately contemplate the Veteran's symptomatology. Furthermore, the current evidence of record does not demonstrate that hearing loss has resulted in frequent periods of hospitalization or in marked interference with employment. While the Board acknowledges the Veteran's testimony regarding his co-workers and sometimes customers (working as a cable technician) having to repeat themselves during conversation, see Hearing Transcript at 5 and 9, at the same time, the Veteran testified that his hearing has never been an issue with his current employer for whom the Veteran reported a history of working for 38 years (albeit the Veteran testified that the company name and structure had changed a number of times over the years). See id. at 5 and 9. Also, the Board notes no occupational impairment was reported during the April 2005 examination, and the August 2009 VA examiner specifically noted that the Veteran's hearing loss had no affect on his employment. Therefore, the Veteran's bilateral hearing loss does not require an increased rating on an extraschedular basis. In summary, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating on a schedular basis, and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs