Citation Nr: 1146830 Decision Date: 12/22/11 Archive Date: 12/29/11 DOCKET NO. 09-21 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to a disability rating in excess of 10 percent for the service-connected right ear hearing loss. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in April 2011. In May 2011, this matter was remanded to the RO for additional development. A July 2011 rating decision assigned a 10 percent rating to the service-connected right ear hearing loss, effective on July 23, 2007. Since the rating remains less than the maximum available schedular benefit awardable, the increased rating claim remains in controversy. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the entire appeal period, the service-connected right ear hearing disability is shown to be manifested by a profound loss of hearing acuity measured at Level XI, and the nonservice-connected left ear hearing loss is assigned a Level I designation. 2. The Veteran currently is not shown to have a left ear hearing disability for VA compensation purposes to support the assignment of a designation higher than level I in this case. CONCLUSION OF LAW For the entire appeal period, the criteria for the assignment of a disability evaluation in excess of 10 percent for the service-connected right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.382, 3.385, 4.1, 4.7, 4.22, 4.85, 4.86; Diagnostic Code 6100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided a VCAA notice letter to the Veteran in September 2007, prior to the initial adjudication of the claim, and in February 2009 and June 2011. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claims for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The September 2007 letter provided this notice. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. A private evaluation report dated in October 2007 and VA treatment records dated from October 2007 to October 2010 have been obtained and associated with the file. The Board finds that there is no identified relevant evidence that needs to be obtained in this regard. The Veteran underwent VA audiometric examinations in September 2007 and July 2011 to obtain medical evidence as to the severity of the service-connected right ear hearing loss. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2011). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Where entitlement to compensation has already been established and 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. § 4.22 provides that in cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. 38 C.F.R. § 4.22. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes 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 will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of 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. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is "V" for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. For example, if the better ear has a numeric designation level of "V," and the poorer ear has a numeric designation level of "VII," the percentage evaluation is 30 percent. 38 C.F.R. § 4.85(e), Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter. 38 C.F.R. § 4.85(f). 38 C.F.R. § 3.383, Special Considerations for paired organs and extremities, provides that a nonservice connected disability is compensable if the hearing impairment of the nonservice-connected ear meets the criteria under 38 C.F.R. § 3.385. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran was granted service connection for a right ear hearing loss in a February 1973 RO rating decision and was assigned a noncompensable rating, effective on June 22, 1971. The RO indicated that the service-connected right ear hearing loss upon entrance into service warranted a 10 percent rating. The RO subtracted the 10 percent preservice disability from the current 10 percent rating which left a noncompensable evaluation for the right ear hearing loss. The Veteran filed his most recent claim for an increased rating in July 2007. A claim for a increase was denied in a February 2008 RO rating decision. In a July 2011 rating decision, the RO assigned a 10 percent rating to the service-connected right ear hearing loss effective on July 23, 2007. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service. 38 C.F.R. § 4.22 (2011). The Veteran asserts that he is entitled to a higher rating for his service-connected right ear hearing loss, which was initially rated as noncompensable (no percent) disabling under Diagnostic Code 6100. During his recent hearing, the Veteran testified that his hearing loss was made worse during service due to shooting in rifle training and participating in generator school and that his hearing loss in the right ear had been described by a private practitioner as profound. In the present case, in February 1973, when service connection for right ear hearing loss was initially granted, the RO determined that the Veteran had right ear hearing loss on entrance into service which was 10 percent disabling. The RO granted service connection for right ear hearing loss based on a determination that the pre-existing hearing loss was aggravated by service. The RO subtracted the 10 percent preservice disability from the current 10 percent rating which left a noncompensable evaluation for the right ear hearing loss. The Board notes that 38 C.F.R. § 4.22 provides that in cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability, the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. 38 C.F.R. § 4.22. See Cotant v. Principi, 17 Vet. App. 116, 129 (2003). In this case, the Board finds that the degree of right ear hearing loss disability at the time of entrance into the service is not ascertainable in terms of the rating schedule currently in effect. The service entrance examination dated in May 1969 does not provide all of the necessary information to rate the service-connected right ear hearing loss under the current rating criteria. Specifically, there are no controlled speech discrimination findings from the May 1969 examination. See 38 C.F.R. § 4.85(a). Thus, a deduction in the disability rating pursuant to 38 C.F.R. § 4.22 will not be made. See 38 C.F.R. § 4.22. The Board has examined the record and finds that a disability rating in excess of 10 percent evaluation is not warranted for the service-connected right ear hearing loss during the period of the appeal. Initially, the Board notes that if impaired hearing is service connected in only one ear, the nonservice-connected ear will be assigned a designation of Level I in Table VII subject to the provisions of 38 C.F.R. § 3.383. The Board finds that the Veteran's left ear hearing loss does not meet the criteria of 38 C.F.R. § 3.385. Thus, for rating purposes, the nonservice-connected left ear will be assigned a designation of Level I in Table VII. Upon VA audiometric evaluation in September 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 85 105 105+ 105+ Speech audiometry revealed speech recognition ability of no percent in the right ear. The diagnosis was normal to profound sensorineural hearing loss. The average puretone threshold for the right ear was 100 decibels. The examiner noted that the hearing loss in the left ear was "not disabling" and was manifested by a moderate loss of "50dB at 8K Hz." The findings of the September 2007 evaluation translates to level XI hearing loss in the right ear and level I hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a 10 percent rating and no higher under Table VII of the rating schedule. Therefore, a disability evaluation in excess of 10 percent is not warranted under Diagnostic Code 6100. 38 C.F.R. § 4.85, Diagnostic Code 6100. Upon VA audiometric evaluation in July 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 90 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 6 percent in the right ear. The diagnosis was normal to profound sensorineural hearing loss. The average puretone threshold for the right ear was 101.25 decibels. The examiner noted that the hearing in the left ear was "[c]linically normal." The findings of the July 2011 evaluation translates to level XI hearing loss in the right ear and assigns a level I designation for hearing loss in the left ear (that did not meet the provisions of 38 C.F.R.§ 3.383) when applied to Table VI of the rating schedule. This level of hearing loss warrants a 10 percent rating and no higher under Table VII of the rating schedule. Therefore, on this record, a disability evaluation in excess of 10 percent is not warranted under Diagnostic Code 6100. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board also notes that 38 C.F.R. § 4.86, exceptional patterns of hearing impairment, does not provide for a higher Roman numeral designation for the hearing impairment in the right ear and does not provide for a higher disability rating in excess of 10 percent. The VA treatment records and private audiometric report dated in October 2007 do not provide a basis for the assignment of a higher rating for the service-connected hearing loss. The VA treatment records did not include complete audiometric testing. The private audiometric evaluation cannot be used for rating purposes since the audiometric evaluation does not comply with VA regulations because it does not contain a puretone threshold reading for the right ear at 3000 Hertz. See 38 C.F.R. § 4.85(d). The Board further finds that a staged rating is not warranted in this case. The Board has examined the record and finds that the right ear hearing loss has remained stable for the entire appeal period. Thus, a 10 percent evaluation and no higher is warranted for the service-connected right ear hearing loss beginning on July 23, 2007. Accordingly, a staged rating under Hart is not warranted. On review of the record, the Veteran's symptoms are fully contemplated in the schedular criteria, and the Board found no factors such as hospitalizations, or marked interference with employability that would suggest that regular schedular criteria are inadequate, and warrant referral for extraschedular consideration. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115 (2008). Regarding the functional effect the hearing loss has on the Veteran's occupation, the July 2011 VA examination report noted that the hearing loss of the right ear caused significant effects on the Veteran's employment in that he is assigned different duties. However, the record also shows that the Veteran continues to be employed. Thus, the Board finds that, with the assignment of a 10 percent rating, this level of impairment for a service-connected unilateral hearing disability is reasonably addressed by the rating criteria. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In summary, a disability evaluation in excess of 10 percent is not warranted for the service-connected right ear hearing loss. As the preponderance of the evidence is against the claim, an increased evaluation must be denied. ORDER An increased disability evaluation in excess of 10 percent for the service-connected right ear hearing loss is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs