Citation Nr: 1301162	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  09-21 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana



THE ISSUE

Entitlement to an initial compensable rating for right ear hearing loss.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1966 to July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right ear hearing loss and assigned a noncompensable (0 percent) rating, effective April 4, 2008.

The Board notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.  


FINDINGS OF FACT

1.  Service connection is in effect for hearing loss in the right ear only.  Until a compensable rating is assigned for the service connected ear, the nonservice-connected ear is treated as normal.  Once a compensable rating is assigned, both ears are rated as service connected.

2.  The Veteran's right ear hearing loss has been manifested by no worse than Level V hearing loss.


CONCLUSION OF LAW

The criteria for a compensable evaluation for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.951, 4.1, 4.85, Diagnostic Code 6100, 4.86 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA 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).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In this case, in an April 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter advised the Veteran to submit evidence from medical providers and statements from others who could describe their observations of his disability level.  The April 2008 letter advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment.  The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").  The case was last adjudicated in January 2012.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA examination reports, VA treatment records, and private treatment records.  

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Relevant Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran was granted service connection and initially assigned a 0 percent, noncompensable rating, effective date April 4, 2008.  The Veteran's left ear was denied service connection because objective audiological testing had failed to show that the severity of hearing loss met the criteria for a hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385 (2012) (impaired hearing is considered a disability for when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent).

Evaluations of defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  38 C.F.R. § 3.385.  To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100.  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a) (2012).  In that situation, 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.  Further, when the average puretone 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, and that numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

If impaired hearing is service-connected in only one ear, as the Veteran currently is, in order to determine the percentage evaluation for hearing impairment, the nonservice connected ear is typically assigned a Roman numeral designation of Level I for hearing impairment as long as there is not complete deafness in that ear.  38 C.F.R. § 4.85(f).

Analysis

Turning to the evidence, the Veteran was accorded a VA audiological examination in April 2008.  The Veteran reported that he suffered from tinnitus and that in November 2007 and January 2008 he was diagnosed with Meniere's Disease and had been treated for vertigo, but that since that time he has had no further similar episodes.  Puretone thresholds on this examination, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
AVERAGE
RIGHT
20
50
55
55
45
LEFT
10
15
15
35
18.75

Speech audiometry revealed speech recognition ability of 100 percent in both ears.

Applying the findings from the April 2008 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level I in one ear and the other ear is not service connected, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.

The Veteran was afforded an additional VA audiological examination in January 2011.  The Veteran again described his previous problems with vertigo and tinnitus, and reported that his hearing loss caused him to have difficulty hearing in all situations.  Puretone thresholds on this examination, in decibels, were as follows:


HERTZ


1000
2000
3000
4000
AVERAGE
RIGHT
25
60
55
60
50
LEFT
10
25
30
35
25

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear.  Applying the findings from the January 2011 VA examination to Table VI again yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear, resulting in a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.

The Veteran's VA treatment records do not show any treatment or complaints for hearing loss.

The Veteran has also submitted private ear examination reports from the time he was suffering from vertigo and possibly Meniere's disease in December 2007 and January 2008.  The Veteran reported that on two occasions he was struck with severe room-spinning and nausea.  He also complained of long-standing tinnitus in his right ear.  The findings from examinations of the Veteran's ears were normal and X-rays revealed possible sinus polyps.

The examiner found that the Veteran had flat moderate to severe sensorineural hearing loss in the right ear and medium high frequency sensorineural hearing loss in the left ear.  The puretone thresholds recorded during this examination, in decibels, were as follows:


HERTZ


1000
2000
4000
AVERAGE
RIGHT
55
60
70
61.7
LEFT
15
20
35
23.3

Speech audiometry revealed speech recognition ability of 72% in the right ear and 88 percent in the left ear.  Unfortunately, the test results provided from this examination do not meet the requirements for evaluation of hearing impairment for VA purposes.  38 C.F.R. § 4.85(a).  The speech recognition test component of these evaluations does not indicate whether the Maryland CNC word list speech discrimination test was used, but rather only indicates the use of an unspecified speech recognition threshold test.  Furthermore, puretone thresholds were recorded at 250, 500, 1000, 2000, 4000, and 8000 Hertz, but not at 3000 Hertz, which is also required for evaluation of hearing impairment disability.  38 C.F.R. § 4.85(d).  Thus, these results are not adequate for rating purposes under 38 C.F.R. § 4.85.  Further clarification is not needed however as the findings reported on this examination are essentially similar to those reported on the most recent VA examination.  In neither exam is there an indication of compensable hearing impairment in the service connected knee.

That is, even when these test results are taken into consideration for the sake of argument, the results again provide a rating of 0 percent for hearing loss, consistent with the Veteran's other hearing loss evaluations.  Were it to be assumed that the Veteran's puretone threshold at 3000 Hertz is consistent with the average puretone thresholds recorded at the December 2007 examination, there is still no regulatory basis for finding a higher applicable rating.  Applying the audiometric findings to Table VI yields a finding of Level V hearing loss in the right ear.  Where hearing loss is at Level V in one ear the other is not service connected, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.  Even under the exceptional patterns of the hearing impairment provision of 38 C.F.R. § 4.86(a), which allows for the application of a separate table when each of the four specified frequencies was 55 decibels or higher for the right ear, the Veteran's right ear hearing loss would be assigned a finding of Level IV.  Where hearing loss is at Level IV in one ear and the other ear is not service connected, a 0 percent rating is assigned under Table VII.  Id.  Therefore, to the extent the December 2007 results could be used for rating purposed under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86, the findings still result in a 0 percent rating. 

The Board notes that the Court has held that, in some instances, VA has a duty to return for clarification unclear or insufficient private examination reports or to explain why it need not seek such clarification.  Savage v. Shinseki, 24 Vet. App. 259, 270 (2011).  In Savage, the Court held that private audiological evaluations that did not specify, among other things, the type of speech recognition testing conducted were the type of medical records that VA has a duty to seek to clarify, as the reports in question "reasonably appear[ed] to contain information that is not otherwise in the record and that may potentially help substantiate" a Veteran's claim.  Id.  Here, however, the Board finds that remand for clarification or additional testing is unnecessary.  Even if the Board were to allow for the use of the private examination under the provisions of 38 C.F.R. §§ 4.85, the Veteran would not be entitled to a rating in excess of 0 percent for hearing loss.  38 C.F.R. §§ 4.85; 4.86(a).  Furthermore, the absence of recorded findings for the Veteran's puretone thresholds at 3000 Hertz would still render the examination inadequate for VA rating purposes.

The Board finds that the VA examinations of April 2008 and January 2011, both performed by competent state-licensed audiologists, are fully in compliance with the requirements of 38 C.F.R. § 4.85(a) and are therefore sufficient to decide the current claim.  The January 2011 examination also included brief discussion of the Veteran's reported functional difficulty.  See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).  The Veteran was asked about how hearing problems affected his work, and he reported only that he difficulty hearing in all listening situations.  The Veteran's statements to the Board have stated only that he feels he should be rated higher than 0 percent due to his loud tinnitus, for which he has not been service-connected, and include no indication that hearing loss alone has caused him functional problems.  See Martinak, 21 Vet. App. 447 (even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination).  Accordingly, the Board finds these examinations comply with the provisions of 38 C.F.R. § 4.85(a) and that the Veteran's functional difficulties have been considered.  Id. 

The Board sympathizes with the Veteran's complaints regarding the impact of hearing loss on his daily life, but the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination.  The Veteran is retired and has not indicated that his hearing loss has prevented him from working or would cause his occupational or social functioning to be impaired.  Although the Veteran has insisted that his hearing loss deserves a higher compensation that what has been given, the findings on the objective examinations are more probative than his lay contentions as to the extent of his right ear hearing loss.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable (higher rating than 0 percent) for right ear hearing loss at any time during this appeal.  38 C.F.R. § 4.85.

In rendering this decision, the Board has considered the provisions of 38 C.F.R. § 3.383, which permits consideration for rating purposes as if both ears are service connected, where hearing impairment in the service-connected ear is itself compensable to a degree of 10 percent or more, and the nonservice-connected ear otherwise meets VA's definition of impaired hearing set forth in 38 C.F.R. § 3.385.  In this case, this consideration is not applicable, as the Veteran's hearing impairment in the service-connected ear is not compensable to a degree of 10 percent or more, nor has the Veteran's nonservice-connected ear been shown to be afflicted with complete deafness, which would warrant consideration of the Veteran's hearing on a bilateral basis.  38 C.F.R. § 4.85.

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1)  (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.

Accordingly, the competent medical evidence of record fails to demonstrate that compensable rating is warranted for the Veteran's service-connected right ear hearing loss at any point during the course of the claim and the currently assigned 0 percent evaluation is appropriate for the entire period.  In reaching the conclusion above, 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 in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


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ORDER

Entitlement to an initial compensable rating for right ear hearing loss is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs