Citation Nr: 1134860 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 04-08 264 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss, from January 8, 2002. 2. Entitlement to a rating in excess of 30 percent for encephalalgia, from June 1, 2004. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from July 1966 to January 1967, as well as a day of active service in March 1970, and additional service with the Army National Guard. This appeal to the Board of Veterans' Appeals (Board) arose from February 2001 and January 2002 rating decisions of the RO. In February 2001, the RO continued a 0 percent (noncompensable) rating for the Veteran's bilateral hearing loss. The Veteran filed a notice of disagreement (NOD) in June 2001. In January 2002, the RO, inter alia, increased the rating for bilateral hearing loss from 0 to 30 percent from September 29, 2000, through January 7, 2002; assigned a 10 percent rating for bilateral hearing loss from January 8, 2002; continued a 10 percent rating for tinnitus; and continued a 0 percent rating for encephalalgia. The Veteran filed a NOD in March 2002, and the RO issued a statement of the case (SOC) in February 2004. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) later that same month. In an April 2006 rating decision, the RO increased the rating for the Veteran's encephalalgia to 30 percent, effective June 1, 2004. In June 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In January 2007, the Board issued a decision denying the claim for an increased rating for tinnitus and remanding the remaining claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the AMC continued the denial of the claims (as reflected in a January 2009 supplemental SOC (SSOC), and returned the matters to the Board for further appellate consideration. In an August 2009 decision, the Board denied a higher rating for bilateral hearing loss for the period from September 29, 2000 through January 7, 2002, as well as denied an increased (compensable) rating for encephalalgia for the period from June 6, 2001 through May 31, 2004. At that time, the remaining matters on appeal-a higher rating for bilateral hearing loss from January 8, 2002 and a higher rating for encephalalgia from June 1, 2004-were remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the AMC continued to deny these matters (as reflected in a July 2011 supplemental SOC (SSOC), and returned them to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. On January 2002 audiometric testing, the Veteran had Level IV hearing in the right ear and Level V hearing in the left ear; and on November 2010 audiometric testing, the Veteran had Level IV hearing in both ears. 3. While the Veteran complained of increasingly frequent and severe headaches since June 1, 2004, the evidence does not show that the headaches involved frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. At no point pertinent to either claim on appeal has the Veteran's service-connected bilateral hearing loss or encephalalgia been shown to be so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for bilateral hearing loss, from January 8, 2002, are not 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 (2010). 2. The criteria for a rating higher than 30 percent for encephalalgia, from June 1, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (2010). 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. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. 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, 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. As regards the matter of bilateral hearing loss, no notice letter was sent to the Veteran prior to the initial, February 2001 rating decision. Post rating, A November 2001 letter addressed both claims for bilateral hearing loss and encephalalgia and provided notice to the appellant regarding what information and evidence is needed to substantiate a claim for a higher disability rating, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. With regard to encephalalgia, the January 2002 RO rating decision reflects the RO's initial adjudication of the claim after issuance of the November 2001 letter. Subsequently, the February 2004 SOC provided notice as to the criteria used to evaluate the Veteran's service-connected bilateral hearing loss and encephalalgia. A March 2004 letter specifically informed the Veteran to submit any evidence in his possession pertinent to the claims (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). An April 2006 letter, along with a February 2007 letter, 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 March 2004, April 2006, February 2007 and June 2011 letters, and opportunity for the Veteran to respond, the July 2011 SSOC reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter 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 matters herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA treatment records dated through June 2011; reports of February 2010, March 2010 and December 2010 private audiological evaluations (and the corresponding VA interpretation of the graphical representations); and, the reports of January 2002 and November 2010 VA examinations/evaluations. Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by his representative, on his behalf. The Board also finds that no further RO action on either matter prior to appellate consideration is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, 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 either 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 these matters. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, 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 Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Here, the RO has already assigned staged ratings for each of the disabilities under consideration, and the following analyses decision is therefore undertaken with consideration of the possibility of further staged rating for each disability during the periods now under consideration. A. Bilateral Hearing Loss from January 8, 2002 Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. 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 1,000; 2,000; 3,000; and 4,000 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 (2010). Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86 (2010). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (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). Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that a rating greater than 10 percent for the Veteran's bilateral hearing loss is not warranted at any time for the period since January 8, 2002. On January 2002 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows (in International Standards Organization (ISO) units): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 25 25 25 Left 25 20 30 35 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and 60 percent in the left ear. The Board is aware that the Veteran also received VA examinations in June 2007, July 2007 and January 2010. However, in each examination report, the examiner indicated that the test results were inconsistent and unreliable and should not be used for rating purposes. Also on February 2010 private audiology evaluation, the examiner indicated that test results were unreliable. March and December 2010 private audiology evaluation reports confirm sensorineural hearing loss and include pure tone threshold findings in the requisite frequencies; however, materials used for speech recognition testing were not identified. On November 2010 audiometric testing, the Veteran's pure tone thresholds, in decibels, were as follows (in International Standards Organization (ISO) units): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 25 40 45 45 Left 35 40 45 50 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 68 percent in the left ear. Applying the criteria for evaluating hearing loss to the findings of the January 2002 audiometric evaluation results in designation of Level IV hearing in the right ear and Level V in the left ear based on application of the reported findings to Tables VI and VII. These findings warrant a 10 percent rating under 38 C.F.R. § 4.85, DC 6100. Applying the criteria for evaluating hearing loss to the findings of the November 2010 audiometric evaluation results in designation of Level IV hearing in both ears based on application of the reported findings to Tables VI and VII. These findings warrant a 10 percent rating under 38 C.F.R. § 4.85, DC 6100. The Board points out that the results of audiometric testing obtained on each reliable evaluation do not reflect pure tone thresholds meeting the definition of an exceptional pattern of hearing impairment for either ear under 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. Therefore, for the period from January 8, 2002, a schedular rating in excess of 10 percent for bilateral hearing loss is not warranted. B. Encephalalgia from June 1, 2004 The Veteran's service-connected encephalalgia is rated, by analogy, as migraine headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; see also 38 C.F.R. § 4.20. Under DC 8100, a 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. Headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), pg. 1461, prostration is defined as "A marked loss of strength, as in exhaustion." Considering the pertinent evidence in light of the above, the Board finds that a rating higher than 30 percent for encephalalgia is not warranted at any time for the period since June 1, 2004. The report of the June 2007 examination reflects that the Veteran complained of experiencing headaches since an in-service explosion in 1976. He described the headaches as throbbing-like, and continuous. Bright lights or noise exacerbated the headaches. He reported that he experienced nausea, photophobia and phonophobia from the headaches which left him completely incapacitated. Lying in a dark room offered mild relief. Objectively, the neurological examination was normal. A July 2009 VA treatment record reflects that the Veteran's headaches were controlled with Cymbalta (duloxetine). A March 2010 psychology consult record reflects that there was no history of neurological illness other than persistent and severe headaches. In report of November 2010 VA traumatic brain injury examination, the examiner documented review of the medical records in the claims file. Neurological examination was unremarkable; however, the examiner did note the subjective complaints of headaches which the Veteran reported interfered with his activities of daily living and relationships. The examiner noted that the Veteran described the headaches as prostrating but noted the described headaches did not cause complete exhaustion (the medical definition of prostrating). The examiner noted that the Veteran's reported severity of the headaches was somewhat inconsistent with his functional abilities and there was no objective documentation that the headaches had any impact on the Veteran's ability to work. As indicated above, the 50 percent rating for migraines is warranted for migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The above evidence reflects that, while the Veteran may have complained of headaches that were frequent and severe during the relevant time period, they did not cause prostrating attacks. A July 2009 VA treatment record indicated that the headaches were controlled with Cymbalta. Although the Veteran complained of headaches which interfered with his activities of daily living and relationships in the November 2010 traumatic brain injury examination report, the headaches were not prostrating; the severity of the headaches was inconsistent with the Veteran's functional abilities; and, there was no objective documentation that the headaches had any impact on the Veteran's ability to work. Under these circumstances, the Board finds that the record presents no basis for assignment of the next higher, 50 percent, rating for encephalalgia under the applicable rating criteria during the relevant time period. C. Both Disabilities Additionally, the Board finds that there is no showing that, during any relevant period under consideration, the Veteran's service-connected bilateral hearing loss or encephalalgia has reflected 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(b) (cited and considered in the February 2004 SOC). 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 applicable schedular criteria appear to be adequate to rate each disability under consideration during each pertinent period under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned for each disability based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate either disability. Specifically as regards the claim for higher rating for hearing loss, the Board points out that, even if, given the mechanical nature of deriving ratings for hearing loss, the Board found that consideration of the functional effects of the Veteran's hearing loss in determining whether an extra-schedular rating is warranted is appropriate, exceptional or unusual disability simply is not shown here. As noted above, the audiologist concluded that the Veteran's hearing impairment might impact his ability to converse in background noise and on the telephone, but would not prevent him from obtaining and maintaining gainful employment, and that there would be no anticipated effect on his ability to perform the activities of daily living. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board notes that the Veteran's hearing loss is not otherwise objectively shown to markedly interfere with employment (i.e., beyond that contemplated in each assigned rating) or to warrant frequent periods treatment, much less, hospitalization-both factors identified in 38 C.F.R. § 3.321. Under these circumstances, the Board finds that 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 concludes that there is no basis for staged rating of either disability during the pertinent period under consideration, pursuant to Hart, and that each claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher rating for either disability, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for bilateral hearing loss, from January 8, 2002, is denied. A rating in excess of 30 percent for encephalalgia, from June 1, 2004, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs