Citation Nr: 1037366 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 07-36 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran appellant had active service in the United States Navy from December 1942 to June 1946; he was a pilot and he was awarded the Air Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by Department of Veterans Affairs (VA) Tiger Team Special Processing Unit in Cleveland, Ohio. Thereafter, the case was handled by the Regional Office (RO) in Oakland, California. The Veteran appealed the initial rating assigned for the bilateral hearing loss disability. He was, in effect, asking for a higher rating effective from the date service connection was granted. Thus, the entire time period in question is on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). In his November 2007 VA Form 9, the Veteran requested a Travel Board hearing. In July 2008, the appellant indicated that he would accept a Board teleconference hearing. Subsequently, however, the appellant stated that he was withdrawing his request for a Board hearing in a VA Form 21-4138 submitted in July 2010; he asked that his case be transferred directly to the Board. Therefore, the Board deems the appellant's request for a hearing before the Board to be withdrawn. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. On VA audiology consultation conducted in February 2006, the Veteran's hearing acuity was level III in the right ear and level I in the left ear. 2. On VA audiological testing conducted in July 2006, the Veteran's hearing acuity was level II in the right ear and level I in the left ear. 3. On VA audiological testing conducted in January 2009, the Veteran's hearing acuity was level III in the right ear and level I in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for right and left (bilateral) hearing loss have not been met at any time. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Table VI and Table VII, 4.86, Diagnostic Code 6100 (2009); Fenderson v. West, 12 Vet. App. 119, 126 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The appellant's hearing loss claim arises from his disagreement with the initial evaluation assigned for that disability following the grant of service connection. The Court, quoting from the legislative history of the VCAA, has held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, supra, at 491. See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, to whatever extent the decision of the Court in Dingess requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. A letter to the Veteran from VA, dated in June 2006 (and prior to the September 2006 rating action), contained the information required by Dingess. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice, and the Board finds, based the factors discussed above, that no prejudicial or harmful error in VCAA notice has been demonstrated in this case. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, the Veteran's VA and private treatment records dated between 2006 and 2010 have been associated with the claims file. The Veteran also was afforded VA audiometric examinations in July 2006, and January 2009. A medical opinion is adequate when it is based upon consideration of a veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Each one of the VA audiometric examinations was conducted by a medical professional, and the associated reports reflect review of the Veteran's prior medical records. The examinations included reports of the symptoms for the claimed disability and demonstrated objective evaluations. The VA examiner was able to assess and record the condition of the bilateral hearing loss disability. The Board finds that the audiometric examination reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that the examinations were in any way incorrectly prepared or that the VA examiners failed to address the clinical significance of the Veteran's claimed hearing loss. Further, the VA examination reports addressed the applicable criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra. Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the Veteran was informed about the kind of evidence that was required and the kinds of assistance VA would provide, and he was supplied with the text of 38 C.F.R. § 3.159. He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed for increased evaluations for hearing loss, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. The Merits of the Claim In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. In this case the evidence reviewed includes the appellant's private and VA treatment records dated between 2006 and 2010; the reports of the VA audiometric examinations conducted in July 2006, and January 2009; and various written statements submitted by the appellant and his representative. The appellant was examined by a private doctor of audiology in June 2010; he reported experiencing decreased hearing sensitivity. However, the Board notes that the report of the associated audiometric testing does not reflect that the speech recognition scores were achieved through a controlled speech test, such as the Maryland CNC. See 38 C.F.R. § 4.85(a) (Examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.) Therefore, those results cannot be considered. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from initially assigned ratings, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two disability 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. Service connection for right and left (bilateral) sensorineural hearing loss was established by a rating decision, effective as of May 2006. An initial evaluation of zero percent evaluation was assigned. The appellant contends that his bilateral hearing loss disability at issue in this case has been more severely disabling than reflected by the noncompensable evaluation that has been in effect since service connection was granted. The severity of a hearing loss disability is determined by comparison of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment must be conducted by a state- licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. Evaluations of bilateral defective hearing 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 of 1000, 2000, 3000 and 4000 hertz, or Hz (cycles per second). The Schedule allows for such audiometric test results to be translated into a numeric designation ranging from level I, for essentially normal acuity, to level XI, for profound deafness, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Review of the appellant's VA treatment records reveals that he was afforded an audiology consultation in February 2006. He complained of having difficulties understanding speech, especially with the TV and "low voices." The consultation included audiometric testing and the resulting pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 70 90 65 LEFT 35 45 55 70 51 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 92 percent in the left ear. These findings result in a corresponding designation of Level III hearing acuity in the right ear and Level I in the left ear. See 38 C.F.R. §§ 4.85, 4.86; Table VI and Table VIA; Table VII. Service connection for bilateral hearing loss was established by a September 2006 rating decision, effective as of May 2006. The appellant had been afforded a VA audiology examination in July 2006; the examiner reviewed the claims file. On the VA audiological evaluation conducted in July 2006, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 75 85 66 LEFT 35 45 55 65 50 The speech audiometry testing revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. These findings result in a corresponding designation of Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. Using Tables VI and VII pursuant to 38 C.F.R. § 4.85, such findings result in a noncompensable disability evaluation. Pursuant to these findings, the RO assigned a disability evaluation of zero percent which the appellant contends is insufficient. The appellant underwent another VA audiological examination in January 2009; the examiner reviewed the claims file. The appellant complained of having difficulty with wind noise and understanding speech with his hearing aids. On the associated VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 65 70 85 68 LEFT 40 45 50 60 49 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. These findings result in a corresponding designation of Level III hearing acuity in the right ear and Level I in the left ear. Using Tables VI and VII pursuant to 38 C.F.R. § 4.85, such findings result in a noncompensable disability evaluation. It should also be noted that the appellant does not experience an exceptional pattern of hearing as set forth in 38 C.F.R. § 4.86. This is so because not all puretone thresholds are 55 decibels or more, and because the thresholds at 2000 Hz are less than 70 decibels. 38 C.F.R. § 4.86. 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 a veteran's hearing impairment disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of a 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 VA examiners of July 2006, and January 2009 noted the effects on the appellant's daily life included his complaints of difficulty understanding with background noise, difficulty with wind noise and difficulty understanding speech. The Veteran has not been employed for many years. Thus, the two VA examination reports did include information concerning how his hearing impairment affects his daily functioning. Further, the appellant was given the opportunity to provide additional evidence through his lay statements and those of third parties. The Board is aware of the appellant's contentions concerning his difficulty with hearing, and has considered those contentions. However, the objective clinical evidence of record does not support a compensable evaluation for his bilateral hearing loss. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular evaluations are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Under Diagnostic Code 6100, a zero percent evaluation is assigned where hearing is at Level IV for one ear and Level II for the other. Under the pertinent regulations, a zero percent rating is yielded by the February 2006 VA consultation results and by the July 2006 and January 2009 VA audiometric examination results. The requirements of 38 C.F.R. § 4.85 set out the numeric levels of impairment required for each disability rating, and those requirements are mandatory. The Board must accordingly find that the preponderance of the evidence is against the appellant's claim for an initial compensable evaluation for his bilateral hearing loss disability. Notwithstanding the above discussion, increased evaluations for the bilateral hearing loss disability could be granted if it were demonstrated that that particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Given the appellant's complaints, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the appellant has not required any hospitalization for the service-connected hearing loss disability at issue, and that the manifestations of the disability are not in excess of those contemplated by the currently assigned rating. Furthermore, although the appellant experiences occupational impairment, there is no indication in the record that the average industrial impairment from the hearing loss disability would be in excess of that contemplated by the assigned rating. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds no evidence that the hearing loss disability presents such an unusual or exceptional disability picture as to require an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). As discussed above, there are higher ratings available for hearing loss, but the required manifestations have not been shown in this case. The Board further finds no evidence of an exceptional disability picture in regard to the hearing loss disability. The appellant has not required any hospitalization for the disability; nor has he required any extensive treatment. The appellant has not offered any objective evidence of any symptoms due to the hearing loss disability that would render impractical the application of the regular schedular standards. Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) (when evaluating an increased rating claim, it is well established that the Board may affirm an RO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own). In this case, the reported symptomatology of the hearing loss disability fits squarely within the relevant rating scheme. The rating criteria contemplate not only the appellant's symptoms but the severity of the hearing loss disability. For these reasons, referral for extraschedular consideration is not warranted. The Board acknowledges that the appellant, in advancing this appeal, believes that his hearing loss disability deficits have been more severe than the assigned disability rating reflects. He maintains that he experiences problems with his daily activities that are due to that disability. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu, supra. However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, supra. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has carefully considered the Veteran's contentions. In this case, however, the competent medical evidence offering the specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the hearing loss disability on appeal. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the bilateral hearing loss. The clinical assessments of record are considered persuasive as to the appellant's degree of impairment due to hearing loss, since they consider the overall industrial impairment due to this service-connected condition. The preponderance of the most probative evidence does not support assignment of any higher rating for the bilateral hearing loss disability. The findings needed for the next higher evaluation for the hearing loss disability are not currently demonstrated. Since the preponderance of the evidence is against an allowance of an initial compensable evaluation for the hearing loss disability under the schedular criteria, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, while an initial rating is at issue, the appellant has not raised the issue of his bilateral hearing loss interfering with his capacity to work, nor has unemployability due to the hearing loss disability been demonstrated in the evidence of record. Therefore, the matter of entitlement to a total disability rating based on individual unemployability is not raised. Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to a "staged" rating for his hearing loss disability. As reflected in the decision above, the Board has not found variation in the appellant's symptomatology or clinical findings for the bilateral hearing loss disability that would warrant the assignment of any staged rating for either condition. Based upon the record, the Board finds that at no time during the claim/appellate period has the bilateral hearing loss disability on appeal been more disabling than as currently rated. (CONTINUED ON NEXT PAGE ORDER An initial compensable evaluation for bilateral hearing loss disability is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs