Citation Nr: 1237194 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-08 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable initial rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from July 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran has testified on two occasions during the course of his appeal. He was afforded a hearing before a Veterans Law Judge at the RO in June 2008. He was also afforded a hearing before the undersigned Veterans Law Judge at the Board's offices in Washington, DC in March 2011. Transcripts of both hearings have been associated with the record. The Veteran's claim was remanded for additional development in July 2011. The requested development having been completed, the matter again is before the Board. As noted in the Board's July 2011 Board remand, service connection for left ear hearing loss disability was granted in a November 2006 rating decision. A noncompensable evaluation was assigned. The November 2006 rating decision also denied service connection for right ear hearing loss disability. The Veteran appealed the initial rating of his left ear hearing loss disability and the denial of service connection for the right ear. In May 2010, while the appeal was in remand status, the RO granted service connection for right ear hearing loss disability and recharacterized the issue as the evaluation of bilateral hearing loss disability. As such, the Board has characterized the issue as stated above. FINDINGS OF FACT 1. Audiometric examinations correspond to no greater than a level III hearing loss for the right ear and no greater than a level III hearing loss for the left ear. 2. The Veteran's hearing loss disability does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.85, Diagnostic Code (DC) 6100, 4.86 (2012). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In this case, the claim is a "downstream" issue in that it arose from the initial grants of service connection for the right and left ears. Prior to the rating decisions granting service connection, the RO issued a notice letter in October 2006 that fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, a subsequent June 2007 rating decision also provided the Veteran notice as to his then left ear hearing loss claim. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Significantly, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veteran Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for granting entitlement to an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file and the Veteran has not reported treatment for his hearing problems through VA. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate QTC and VA examinations in October 2006 and November 2008, respectively. In addition, pursuant to the Board's July 2011 remand, the Veteran was afforded another VA examination in August 2011. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. Specifically, the examinations provide sufficient information to assess the current severity of the Veteran's service-connected bilateral hearing loss. Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board recognizes that 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 the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Neither the Veteran nor his accredited representative has asserted that there is any deficiency in his VA examinations. Furthermore, the Board notes that the QTC or VA examination reports discussed the Veteran's claim that his current symptoms were difficulty hearing and understanding others, especially in the presence of background noise. Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the examiners discussed the functional effects of the Veteran's hearing problems in the examination reports. Moreover, the Veteran reiterated these problems during the June 2008 and March 2011 Board hearings, when he reported that he had difficulty understanding voices, especially women's voices, as well as difficulty hearing that required him to raise the volume on the television and radio. Therefore, the Board finds a remand for a VA examination to further document the functional effects of the Veteran's hearing problems would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). Consequently, the Veteran's claim is ripe for appellate disposition. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating The Veteran alleges that his current bilateral hearing loss is more severe than his current noncompensable rating. The evaluation assigned for a service-connected disability is established by comparing the manifestations shown with the criteria in the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned. 38 C.F.R. § 4.86 (a) & (b). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran was afforded a QTC audio examination in October 2006. At that time, the Veteran reported decreased ability to hear or understand and moderate constant tinnitus bilaterally. The results of the QTC audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 25 LEFT 15 15 15 15 50 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 94 percent in the right ear and 90 percent in the left ear. The average of the pure tones between 1000-4000 Hz was 18 decibels for the right ear and 24 decibels for the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of I for the right ear and II for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). In support of his claim, the Veteran submitted a January 2007 private audiogram. The results of the private audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 15 35 LEFT 15 20 25 25 55 Speech audiometry revealed speech recognition ability on the ANSI S3.22 1987 word list of 92 percent in both the right ear and the left ear. The average of the pure tones between 1000-4000 Hz was 18.75 decibels for the right ear and 31.25 decibels for the left ear. As noted above, the speech discrimination test was not performed using the Maryland CNC test, as required pursuant to 38 C.F.R. § 4.85. The word list requirement in the regulation is very specific and differs from other word lists used to test hearing impairment. As such, and as acknowledged by the Veteran in various statements, the results of the January 2007 audiogram cannot be used to establish entitlement to a compensable initial rating. The Veteran was afforded a VA audio examination in November 2008. At that time, the Veteran reported that his chief current complaints were tinnitus and an inability to understand his wife. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 25 40 LEFT 25 20 25 25 55 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 72 and 76 percent in the right ear and 64 and 80 percent in the left ear. The average of the pure tones between 1000-4000 Hz was 26 decibels for the right ear and 31 decibels for the left ear. In instances where multiple speech recognition scores are obtained during testing, only the best performance will be utilized (in this case 76 percent for the right ear and 80 percent for the left ear). See Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, sec. B, pt. 2, table 7 (K.C. Dennis, ed. 2004). Using Table VI in 38 C.F.R. § 4.85, therefore, the Veteran would receive a numeric designation of III for the right ear and III for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). On August 25, 2011, the Veteran underwent anther VA examination. The results of the VA audiological test are as follows, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 25 50 LEFT 20 20 20 55 70 Speech audiometry revealed speech recognition ability on the Maryland CNC word list of 80 percent in both the right ear and the left ear. The average of the pure tones between 1000-4000 Hz was 28 decibels in the right ear and 29 decibels in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received a numeric designation of III for the right ear and III for the left ear. Such a degree of hearing loss warrants a noncompensable rating under Table VII. The Board notes that it also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. See 38 C.F.R. § 4.86 (a) & (b). The Board has considered the lay statements provided by the Veteran. As was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, there is no evidence of a change in the Veteran's hearing since the August 2011 examination and, therefore, nothing to suggest that an additional VA examination would be beneficial. The probative medical evidence does not show the Veteran's hearing loss has ever reached a compensable level. As such, staged ratings are inapplicable here. See Fenderson, 12 Vet. App. at 119. Considering the results of the VA examination, entitlement to a compensable rating is denied. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the Veteran reports difficulty hearing his wife and other women's voices, as well as the television, radio, and speech in areas with background noise. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations, the television, and radio is a factor contemplated in the regulations and rating criteria as defined. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a compensable initial rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs