Citation Nr: 1102622 Decision Date: 01/21/11 Archive Date: 01/26/11 DOCKET NO. 07-34 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a compensable rating for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Veteran's Step-Son ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran had active service from January 1956 to November 1957. This matter comes to the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the above claim. In its July 2007 decision, the RO also denied entitlement to an increased evaluation for scarring of the right ear drum and entitlement to an increased evaluation for tinnitus. The Veteran perfected an appeal as to both of these issues. However, in a March 2008 statement, the Veteran's representative, acting on the Veteran's behalf, withdrew the Veteran's appeals as to the issues of entitlement to an increased evaluation for scarring of the right ear drum and entitlement to an increased evaluation for tinnitus. See 38 C.F.R. § 20.204. Therefore, the issue on appeal is as stated on the cover page. In August 2008, the Veteran testified at a hearing before BVA. When this claim was previously before the Board in September 2009, it was remanded for further development. As noted in the Board's September 2009 remand, a review of the record reveals that, in a March 1993 rating decision, the RO denied entitlement to service connection for left ear hearing loss on the grounds that this condition was not shown in service or to a compensable degree within one year from separation from service. The Veteran received notice of the March 1993 decision and his appellate rights, but he did not appeal. Following the March 1993 denial, however, in June 2004, a VA examiner provided the opinion that the Veteran's left ear hearing loss was at least as likely as not related to his military service. Additionally, in a March 2010 letter, the Veteran was notified of this positive medical opinion and was informed that if he wished to reopen his claim of entitlement to service connection for left ear hearing loss, he should submit a written statement to this effect. Significantly, however, to date, there is no indication from the claims file that the Veteran has filed a petition to reopen his claim of entitlement to service connection for left ear hearing loss. FINDING OF FACT The Veteran is not service-connected for left ear hearing loss and has no more that Level V hearing in his service connected right ear. CONCLUSION OF LAW The criteria for a compensable disability rating for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.85, 4.86 Diagnostic Code 6100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Moreover, the Board is satisfied that the RO has substantially complied with the Board's September 2009 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that it directed the RO to obtain complete copies of any recent VA treatment records and to schedule the Veteran for a VA audiological examination assessing the current severity of his bilateral hearing loss. In this regard, the Board notes that, on remand, all relevant records were obtained, and in January 2010, the Veteran was afforded a VA audiological examination. Moreover, the Board notes that, in compliance with the holding in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), both the April 2007 and January 2010 VA examiners fully addressed the functional effects of the Veteran's hearing loss. Therefore, the Board finds that the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. The Veteran was initially granted service connection for right ear hearing loss in a March 1993 rating decision and was assigned a noncompensable disability rating, effective November 2, 1992. In November 2006, the Veteran submitted a claim for an increased rating for his right ear hearing loss, claiming that his hearing had worsened such that a compensable evaluation was warranted. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Other than exceptional cases, VA arrives at the proper designation of hearing loss in each ear by mechanical application of Table VI; Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. As provided in 38 C.F.R. § 4.85(f), where hearing loss 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 applicable provisions of 38 C.F.R. § 3.383 pertaining to special consideration for paired organs. 38 C.F.R. § 4.85(f). Significantly, however, as discussed below, because the Veteran's service-connected right ear hearing loss does not meet the requirements for a disability rating of 10 percent or more, 38 C.F.R. § 3.383(a)(3) does not apply in this case. A review of the Veteran's VA treatment records reveals that, in December 2006, the Veteran was fitted for VA hearing aids; and thereafter, in May 2007, June 2007, August 2007, and October 2007, he received follow-up treatment for his hearing aids. Significantly, however, at no point during this treatment was the Veteran's hearing tested. The Veteran underwent a VA audiological examination in April 2007, the results of which are as follows, with puretone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 55 60 65 The average puretone threshold in the Veteran's right ear was 57 decibels, and on the Maryland CNC test, the Veteran received a score of 92 percent for the right ear for word recognition. At that examination, the Veteran reported that he experienced difficulty understanding conversational speech, even when the speaker was within a short distance of him; speech over the phone; speech in groups; speech in his home environment; and speech in noisy environments. In this regard, the Veteran stated that, although conversational speech might be sufficiently loud, he still had difficulty understanding words, and as such, often had to ask others to repeat themselves. Moreover, the Veteran reported that he had to listen to the radio and television at levels that were too loud for others. Based on the results of his audiological examination, the examiner diagnosed the Veteran with moderate to severe sensorineural hearing loss from 500 to 8000 Hertz in the right ear. These results equate to an assignment of level I hearing loss for the Veteran's right ear using table VI. Table VIA is not available to the Veteran because 1) his pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, and 2) his pure tone threshold is not 55 decibels or more at each of 1000, 2000, 3000, and 4000 Hertz. As noted above, 38 C.F.R. § 4.85(f) provides that where hearing loss 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 of I for hearing impairment. Therefore, the Veteran's nonservice-connected left ear will be assigned a Roman Numeral designation of I. Based on these results, the Veteran's April 2007 audiologic testing merits a noncompensable rating using table VII. At his August 2008 Board hearing, the Veteran reported that his right ear hearing loss had worsened since his last VA examination, which was conducted in April 2007. The Veteran also reported that he had been issued VA hearing aids in December 2006, but that these were so sensitive that he could not stand to wear them. Additionally, the Veteran's step-son testified that, while he was growing up, his step-father had gotten upset and irritated when people approached him on his right side because he could not hear them. Thereafter, in January 2010, in compliance with the Board's September 2009 remand instructions, the Veteran was afforded an additional VA audiological examination, the results of which are as follows, with puretone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 70 70 70 The average puretone threshold in the Veteran's right ear was 66 decibels, and on the Maryland CNC test, the Veteran received a score of 92 percent for the right ear for word recognition. Additionally, at the examination, the Veteran reported that his hearing loss interferes with his daily activities insofar as he is not always able to hear the person that he is talking to. Further, the examiner noted that the effect of the Veteran's right ear hearing loss on his occupational and social functioning could not be determined independent of his left ear hearing loss, which was not service-connected. In this regard, the examiner stated that, if the Veteran's left ear hearing were normal, his communication difficulty would not be as severe and he would not have as much difficulty hearing and understanding speech; however, with the Veteran's present level of bilateral hearing loss, conversational speech must be very loud and the speaker must be face-to-face with the Veteran in order for him to understand it. Moreover, the examiner stated that if the Veteran's hearing loss were limited to his right ear, then a speaker could stand on the Veteran's left side in order to be understood. Significantly, however, the examiner went on to report that, even if the Veteran had normal hearing in his left ear, he would still have difficulty understanding speech in groups and noisy situations. Based on the results of his audiological examination, the examiner diagnosed the Veteran with moderate to severe sensorineural hearing loss. In this regard, the examiner stated that there had not been any significant changes in the Veteran's hearing since his April 2007 VA examination. These results equate to an assignment of level II hearing loss for the Veteran's right ear using table VI. Table VIA is available to the Veteran for his right ear because his puretone threshold is 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 4.86. The Veteran's right ear results equate to an assignment of level V using table VIA. In this case, Table VIA results in the higher numerical evaluation, and accordingly, will be used for rating purposes. Again, as provided in 38 C.F.R. § 4.85(f), where hearing loss 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 of I for hearing impairment. Based on these results, the Veteran's January 2010 audiologic testing merits a noncompensable rating using table VII. Although the Veteran contends that his right ear hearing loss has worsened, and the results of his VA examinations indeed reflect that his right ear hearing loss has worsened from level I hearing loss in April 2007 to level V hearing loss in January 2010, the disability rating schedule is applied mechanically based on the results of audiometric testing. Accordingly, because the evidence fails to establish a compensable rating at any time during the appellate period, the Veteran's claim for an increased rating for right ear hearing loss is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). However, the rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty understanding speech at the conversational level, in noisy environments, in groups, and over the phone, radio, and television) are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. For these reasons, referral for consideration of an extraschedular rating is not warranted in this case. ORDER A compensable evaluation for right ear hearing loss is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs