Citation Nr: 1121237	
Decision Date: 06/01/11    Archive Date: 06/09/11

DOCKET NO.  10-39 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to a compensable disability evaluation for service-connected bilateral hearing loss.   


REPRESENTATION

Veteran represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

C. Ferguson, Counsel


INTRODUCTION

The Veteran retired from the U.S. Army/Army National Guard in January 1991 with approximately 20 years of active military service.  The service department has certified his dates of service as follows:  June 1961 to March 1970; January 1976 to July 1976; August 1979 to December 1979; and April 1981 to January 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO).  


FINDINGS OF FACT

The Veteran demonstrated no worse than Level II hearing acuity in his service-connected right ear and Level IV hearing acuity in his service-connected left ear on audiological evaluations conducted during the claim/appeal period.


CONCLUSION OF LAW

The criteria for a compensable disability rating for bilateral hearing loss have not been met for the entire claim/appeal period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.85, Diagnostic Code 6100 (2010).


REASONS AND BASES FOR FINDINGS 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.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

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.  38 C.F.R. § 3.159(b)(1).  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 U.S. Court of Veterans Appeals (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.  

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

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 and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

The U.S. 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 the November 2009 VCAA notice letter, the RO advised the Veteran that he may submit evidence showing that his service-connected bilateral hearing loss had increased in severity.  The RO also explained how VA determines the disability rating and included a thorough description of the types of information and evidence that the Veteran may provide VA in support of the assignment of a disability rating, per Dingess, supra.  The RO further explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his claim.  Thus, the November 2009 VCAA notice letter, which was sent prior to the initial denial of the claim, fully satisfied VCAA notice requirements with respect to the Veteran's bilateral hearing loss claim.    

The record further reflects that the Veteran has been provided with a copy of the above rating decision, the August 2010 SOC, and the January 2011 SSOC, which cumulatively included a discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision.  

Moreover, neither the Veteran nor his representative has alleged any prejudice with respect to the notice received for the increased rating claim during the course of this appeal.  The Veteran has been provided with ample opportunity to submit evidence and argument in support of his claim and to participate effectively in the processing of his claim for an increased rating during the course of this claim/appeal.

In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.  Quartuccio, supra, at 187.  

To fulfill its statutory duty to assist, the RO afforded the Veteran with an audiological examination in connection with his claim in February 2010.  The Board notes that all relevant audiometric findings for evaluation of the Veteran's claim on a schedular basis are included in the examination report.  

In addition, the Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted.  Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[-]schedular rating is warranted.  The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.

In this case, the February 2010 VA audiological examiner specifically addressed the functional effect of the Veteran's hearing loss disability.  In this regard, the Board notes that the examiner noted that the Veteran's hearing loss had significant effects on his occupation because he may experience difficulty understanding speech without the utilization of visual cues.  Also, the Veteran's VA treatment records further reveal that the Veteran wears hearing aids in both ears, which relates to his occupational functioning and daily activities.  Therefore, the evidence of record is sufficient for the purposes of evaluating the Veteran's claim, to include consideration of whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b).  

Further, VA treatment records adequately identified as relevant to the Veteran's increased rating claim have been obtained and are associated with the claims folder.  The Veteran has also submitted a private audiological evaluation report for consideration and is discussed below.  The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein.  In view of the foregoing, the Board will proceed with appellate review.  

II.  Pertinent Law, Facts, and Analysis

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained 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.  

In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition.  

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.  38 C.F.R. 
§ 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, such as in this case, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100, Tables VI, VIA, VII of VA's rating schedule.  

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz), divided by four.  38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

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 VI A, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).

When the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI A, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b).

The Veteran has asserted that his hearing loss has worsened and, consequently, sought an increased disability evaluation for his service-connected bilateral hearing loss.  See October 2009 VA Form 21-4138.  

In connection with the increased rating claim, the Veteran underwent audiological evaluation in February 2010.  On audiological examination, he exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
45
70
70
LEFT
25
40
65
85
100

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear.

Under the guidelines set forth in 38 C.F.R. § 4.85, the February 2010 audiometric results reveal that the Veteran demonstrated Level III hearing acuity in the service-connected left ear (with a puretone threshold average of 73 dB and speech discrimination score of 88 percent) and a Level I hearing acuity in the service-connected right ear (with puretone threshold average of 51 and speech discrimination score of 92 percent).  Table VII (DC 6100) provides a 0 percent disability rating for the hearing impairment demonstrated at this examination.  38 C.F.R. § 4.85.  

The Board notes that the Veteran has also submitted a private audiogram dated in April 2010 in support of his claim.  The Veteran asserts that the private hearing examination report shows decibel loss and speech discrimination worse than what was shown at the VA audiological examination.  See VA Form 21-4138 dated in April 2010.  

The Board notes that the audiometric data from the April 2010 private audiogram results were provided in graph form.  Although the Board is unable to discern demonstrated pure tone thresholds for the left ear at the 1000 Hz and 2000 Hz level, the Board has depicted the numerical results from the graph as shown below.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact-finding, the Court is precluded from engaging in such fact-finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing).  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
40
65
75
LEFT
25
-
-
75
100

Also, at the private audiological evaluation, speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 80 percent in the left ear, which the private audiologist described as excellent and good, respectively.  However, it is unclear whether speech discrimination testing was conducted using the Maryland CNC test.  See 38 C.F.R. § 4.85(a).    

In Savage v. Shinseki, No. 09-4406 (U.S. Vet. App. Jan. 4, 2011), the Court held that, pursuant to 38 U.S.C. § 5103A(a), when a private examination report "reasonably appears" to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed.  Acknowledging that VA has very little ability to compel non-VA medical personnel to comply with such a request, the Court limited its holding "to those instances in which the missing information is relevant, factual, and objective - that is, not a matter of opinion - and where the missing evidence bears greatly on the probative value of the private examination report."  

After carefully considering the Savage precedent, and in view of the foregoing analysis, the Board finds that no further clarification is needed in this case, for reasons explained below.  

Although not all of the audiometric results of the private audiogram are discernible, the available audiometric results, as depicted above, are similar to the results shown at the VA audiological examination.  For example, the puretone threshold average for the right ear at the private audiological examination is 50 and the puretone threshold average for the right ear at the VA audiological examination is 51.  In addition, although not all of the audiometric results for the left ear are discernible, the measured pure tone threshold values at the 500 Hz and 4000 Hz levels are the same as those values demonstrated at the VA audiological examination.  Further, the threshold value at the 3000 Hz level appears to have been worse at the VA audiological examination than at the private examination.   

In regard to speech discrimination scores, the Board recognizes that the Veteran may have demonstrated slightly worsened word discrimination for the right ear and a worsened word discrimination score for the left ear at the private audiological evaluation, although it is not clear that the Maryland CNC test was used.  However, even if we assume that a Maryland CNC test was performed as part of the April 2010 private audiological evaluation, the Veteran would not be entitled to a compensable disability evaluation for hearing loss under the guidelines set forth in 38 C.F.R. § 4.85.

Assuming arguendo that the April 2010 audiometric results for the left ear are the same as those demonstrated at the VA examination, the Board notes that the Veteran would have demonstrated Level IV hearing acuity in the service-connected left ear (with a puretone threshold average of 73 dB and speech discrimination score of 80 percent) and a Level II hearing acuity for the service-connected right ear (with puretone threshold average of 50 dB and speech discrimination score of 90 percent).  Table VII (Diagnostic Code 6100) still provides a 0 percent disability rating for the hearing impairment demonstrated at this examination.  38 C.F.R. § 4.85.  

Further, the Board notes that the audiometric test results from the February 2010 and April 2010 audiological examinations did not show an exceptional pattern of hearing impairment for either ear.  

Based on the foregoing, the Board finds that a preponderance of the evidence is against the claim, because the Veteran's hearing loss more closely approximates the criteria for the currently assigned noncompensable rating under Diagnostic Code 6100 throughout the appeal period.  Thus, entitlement to a compensable rating for bilateral hearing loss on a schedular basis is denied.  

While the Board has considered whether staged ratings are warranted for this period, the factual findings do not show distinct time periods where the Veteran's hearing loss exhibited symptoms that would warrant different ratings.  Thus, a staged rating is not warranted.    

Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  However, after careful review of the available diagnostic codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign a higher schedular evaluation for the Veteran's claimed bilateral hearing loss disability.     

The Board has further considered whether the Veteran's bilateral hearing loss warrants referral for consideration of a higher rating on an extraschedular basis.  38 C.F.R. § 3.321(b); see Barringer v. Peake, 22 Vet. App. 242 (2008).  However, after review of the record, the Board finds that any limitations on the Veteran's employability due to his service-connected bilateral hearing loss have been contemplated in the currently assigned noncompensable rating under DC 6100.  While the VA audiologist noted that the Veteran's hearing difficulty had a significant effect on his occupation because he may experience difficulty understanding speech without the utilization of visual cues and had difficulty hearing female voices, the Veteran does not allege and the evidence does not otherwise reflect that his claimed disability has necessitated any frequent periods of hospitalization or caused marked interference with employment at any time relevant to the claim/appeal period. 

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 record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant consideration of the assignment of an extraschedular rating.  


ORDER

Entitlement to a compensable disability evaluation for service-connected bilateral hearing loss is denied.  



____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs