Citation Nr: 1302223 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 11-29 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from November 1945 to October 1947 and from June 1951 to March 1957. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision by the Indianapolis, Indiana Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for bilateral hearing loss and assigned a 0 percent, noncompensable disability rating. In April 2012, the Veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. In May 2012, the Board remanded the hearing loss rating issue, and issues of service connection for a vision disorder and residuals of left knee injury, to the RO via the VA Appeals Management Center (AMC) in Washington, DC for the development of additional evidence. In a July 2012 rating decision, the RO granted service connection for a vision disorder and left knee disability. That decision resolved those service connection claims, and they are no longer on appeal before the Board. With respect to the appeal for a higher initial rating for hearing loss, the Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review of that issue. See Stegall v. West, 11 Vet. App. 268 (1998). In this case, the Board has not only reviewed the physical claims file, but also the file for the case on the Virtual VA electronic file system, to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT From June 17, 2009, the Veteran's hearing impairment has been no worse than Level III impairment in one ear and Level II impairment in the other ear. CONCLUSION OF LAW From June 17, 2009, the Veteran's bilateral hearing loss has not met the criteria for a compensable disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability 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, 126 (1999). The Veteran appealed the initial noncompensable disability rating that the RO assigned for his hearing loss. The Board will consider the evidence for the entire period since June 17, 2009, the effective date of the grant of service connection for hearing loss, and will consider whether staged ratings are warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz, shown on a puretone audiometry test. 38 C.F.R. § 4.85. To find the appropriate disability rating based on test results, the puretone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I to XI. See 38 C.F.R. § 4.85, Table VI. The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss. See 38 C.F.R. § 4.85, Table VII. When certain exceptional patterns of hearing impairment are present, hearing may be evaluated under a separate table, Table VIa, if evaluation under that table would result in a higher hearing impairment level numeral. See 38 C.F.R. § 4.86(a) (2012). The Veteran's hearing impairment is not in any of the patterns described in 38 C.F.R. § 4.86, so his hearing impairment can be evaluated under 38 C.F.R. § 4.85 and Tables VI and VII. Tables VI and VII are reproduced below. TABLE VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination Percentage of Discrimination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VII Percentage Evaluations for Hearing Impairment LEVEL OF HEARING IN BETTER EAR XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I LEVEL OF HEARING IN POORER EAR * Entitled to special monthly compensation under 38 C.F.R. 3.350. [64 FR 25206, May 11, 1999] The Veteran had a VA audiology consultation in December 2008. He reported experiencing decreased hearing since his service in the 1950s, during which he was exposed to noise from small arms, aircraft, and other combat sounds. He indicated that he had not been exposed to much noise since. The treating clinician reported that the Veteran's hearing was within normal limits through 1500 Hertz, and that at higher frequencies the Veteran had mild to severe high frequency sensorineural hearing loss bilaterally. The treatment note did not show the thresholds at specific frequencies. Word recognition scores were 100 percent bilaterally. The clinician recommended hearing aids. VA treatment notes from 2009 forward reflect that the Veteran has hearing aids. The Veteran had a VA audiological examination in February 2010. On that evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 55 95 100 LEFT 25 20 45 100 95 The puretone threshold average was 69 decibels in the right ear and 65 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear. The hearing impairment levels were II in the right ear and III in the left ear. The test results were consistent with a 0 percent rating. The VA examination was conducted in accordance with 38 C.F.R. § 4.85(a), and the examiner noted the Veteran's perception of impairment of hearing. The Board finds that the VA examination was adequate for rating purposes and is entitled to great probative value. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In the April 2012 Travel Board hearing, the Veteran reported that his hearing had worsened since his previous VA audiological examination. In an April 2012 written statement, the Veteran noted that he heard noise quite well, but was unable to distinguish what was being said in settings with multiple persons speaking or background noise, or over the telephone. He stated that it was very difficult for him to understand female voices. The Veteran reported that in past hearing testing he misunderstood how current testing methods measured hearing. As a result, he wrote, on spoken word testing he raised his hand when he heard sound, rather than raising his hand only when he understood what word was spoken. The Veteran stated that his hearing problems had affected his employment. He related that in 1983 he misunderstood a client, and as a result lost a job as a senior construction project engineer. He stated that because of his hearing impairment, he had been unable to work in his profession since. The Veteran had a VA audiological examination in June 2012. On that evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 45 90 100 LEFT 30 25 35 85 85 The puretone threshold average was 65 decibels in the right ear and 58 decibels in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 96 percent in the left ear. The hearing impairment levels were III in the right ear and II in the left ear. The test results were consistent with a 0 percent rating. The VA examination was conducted in accordance with 38 C.F.R. § 4.85(a), and the examiner noted the Veteran's perception of impairment of hearing. The Board finds that the VA examination was adequate for rating purposes and is entitled to great probative value. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). VA audiological testing in 2010 and 2012 showed more speech recognition impairment than was found in the 2008 audiology consultation. Nonetheless, the audiological testing in 2010 and 2012 showed that the Veteran's bilateral hearing impairment was at levels consistent with a 0 percent rating under the VA rating criteria. There is no objective evidence of hearing impairment that meets the criteria for a higher, compensable rating. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's bilateral hearing loss has not required frequent hospitalizations. The Veteran has indicated that hearing loss has had some effect on his employment. He has reported that in 1983 he lost a job because he misunderstood what a client had said, and that his hearing impairment had made him unable to work since in his profession as a construction project engineer. The Board acknowledges that ability to understand speech accurately is important in many types of employment. Hearing impairment at levels shown in testing of the Veteran would not be expected to cause marked interference with every type of employment, however. In addition, the record does not indicate whether in 1983, when the Veteran reportedly lost the job, he had hearing aids to help address his hearing loss. The Veteran is more than 80 years old and has multiple medical conditions. The record indicates that he does not currently hold employment. The Board accepts that the Veteran's hearing loss has some effect on his capacity for employment, but finds that the evidence does not tend to show that his hearing loss interferes with his capacity for employment to an extent that could be described as marked. In addition, the rating schedule provides for higher ratings for levels of hearing impairment greater than the impairment measured in the Veteran's case. Thus, the Veteran's bilateral hearing loss does not present an exceptional or unusual disability picture, it is practical to evaluate his hearing loss under the rating schedule, and it is not necessary to refer the rating of the hearing loss for consideration of an extraschedular rating. As testing by VA-accepted methods shows bilateral hearing impairment at levels ratable at no higher than 0 percent under VA rating criteria, the Board denies a compensable rating for any period. 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. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. 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 the Veteran 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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). Insufficiency in the timing or content of VCAA notice is harmless, however, 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). The RO provided the Veteran with VCAA notice in an October 2009 letter, issued prior to the March 2010 decision in which the RO assigned an initial noncompensable disability rating for bilateral hearing loss. That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, reports of VA medical examinations, and the transcript of the April 2012 hearing. The audiological examinations that the Veteran has had were adequate for VA rating purposes. In the May 2012 remand, the Board instructed that additional VA medical records be obtained, and that the Veteran receive a new VA audiological examination. Additional VA medical records have been added to the record. The Veteran received a new VA audiological examination in June 2012. The Board is satisfied that the remand instructions have been carried out. The Board will proceed with adjudication of the hearing loss rating issue. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the hearing loss rating issue, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim 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). ORDER From June 17, 2009, a compensable disability rating for the Veteran's bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs