Citation Nr: 1303552 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 07-25 467 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for bilateral high frequency hearing loss prior to September 30, 2011. 2. Entitlement to an evaluation in excess of 40 percent for bilateral high frequency hearing loss on or after September 30, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1959 to September 1971. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a February 2007 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. During the pendency of the appeal, the jurisdiction of the case was transferred to the RO in Winston-Salem, North Carolina. The Board remanded the case for further development in September 2011. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the Veteran submitted a notice of disagreement with the effective date of September 30, 2011, for an increased rating for his hearing loss. However, the gravamen of that claim is that a rating in excess of 20 percent was warranted prior to that date. As such, it is actually a component of the current claim and not a new appellate issue. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss prior to September 30, 2011, is not shown to be manifested by worse than a level V impairment of auditory acuity in the right ear and level VI impairment of acuity in the left ear. 2. The Veteran's bilateral hearing loss beginning September 30, 2011, is not shown to be manifested by worse than a level V impairment of auditory acuity in the right ear and level IX impairment of acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for bilateral high frequency hearing loss prior to September 30, 2011, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for an evaluation in excess of 40 percent for bilateral high frequency hearing loss on or after September 30, 2011, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent a letter to the Veteran in May 2007 that notified him of the evidence needed to substantiate his claim and of the division of responsibilities in obtaining such evidence. The letter explained how VA could assist him in developing evidence in support of his contentions and informed him that he needed evidence showing that his disability had worsened in order to receive a higher rating. The letter further explained how disability ratings and effective dates are determined. Thus, the content of the notice satisfied the duty to notify provisions. The Board does acknowledge that the May 2007 letter was sent to the Veteran after the initial rating decision in February 2007. However, the claim was readjudicated in a statement of the case after the letter was sent to him. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The Veteran has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the Veteran. Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any outstanding records that are available and relevant to the claim being decided herein. The Veteran was also afforded VA examinations in July 2007 and September 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on the Veteran's reported medical history as well as on a physical examination and audiological testing and fully address the rating criteria that are relevant to rating the disability in this case. The Board does observe that July 2007 VA examiner did not review the claims file; however, the Veteran did inform the examiner of his medical history and current complaints, and the examiner performed a physical examination that addressed all of the rating criteria. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, during the course of the appeal, the Compensation and Pension (C&P) hearing examination worksheets were revised to include a discussion of 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 (2008). In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. In this case, the VA examinations did include questions regarding the affect of the appellant's hearing problems on his occupation and daily life. In this regard, the July 2007 VA examiner noted that the Veteran reported having the greatest difficulty hearing with the telephone, television, and family member. The September 2011 VA examiner also indicated that the Veteran's hearing loss impact the ordinary conditions of daily life, including work. The Veteran indicated that his hearing loss can be very aggravating and frustrating. He further noted that he needed the area to be quiet when he was talking on the phone and that he needed a doorbell because he cannot hear people at the door. Moreover, in Martinak, the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination. There have been no allegations of any prejudice caused by a deficiency in the examination here. Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral hearing loss since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's bilateral hearing loss is currently assigned a 20 percent evaluation prior to September 30, 2011, and a 40 percent evaluation thereafter pursuant to 38 C.F.R. § 4.85 , Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lindenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. In this case, the Veteran was scheduled for a review examination in December 2006 but he was unable to attend that examination. At a VA examination in July 2007, which is the next time his hearing was evaluated by VA, the Veteran complained of difficulty hearing the telephone, television, and family members. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 65 70 70 LEFT 45 60 85 105 The average pure tone threshold in decibels was 66.25 for the right ear and 73.75 for the left ear. The Veteran's speech recognition ability using the Maryland CNC test was 86 percent in the right ear and 70 percent in the left ear. The diagnosis was mild to severe sensorineural hearing loss on the right and mild to profound hearing loss on the left side. Using Table VI, the results of the July 2007 VA examination correspond to Level III hearing in the Veteran's right ear and Level VI in his left year, which yields a 10 percent disability evaluation. The Board does note that the Veteran has an exceptional pattern of hearing in his right ear, as he has been shown to have puretone thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz). Thus, using Table VIa, the Veteran's right ear has Level V hearing. When the Level V hearing under Table VIa is applied to Table VII with the Veteran's Level VI hearing in his left ear, the appropriate evaluation is 20 percent. VA treatment records show that the Veteran had difficulty hearing and was prescribed hearing aids with some benefit. The Veteran's hearing was again examined on September 30, 2011. The Veteran related that he found his hearing loss aggravating and frustrating. He had trouble hearing his daughter on the telephone and had to turn the television off in order to hear her. He related that he probably lost business because he was unable to hear the door bell at his workplace. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 60 70 75 LEFT 60 90 105+ 105+ The average pure tone threshold in decibels was 65 for the right ear and 90 for the left ear. The Veteran's speech recognition ability was 68 percent in the right ear and 44 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. Using Table VI, the results of the September 2011 VA examination correspond to Level V hearing in the Veteran's right ear and Level IX in his left year, which yields a 40 percent disability evaluation. The Board does observe that the Veteran has been shown to have an exceptional patter of hearing in both ears, as each of the puretone thresholds is 55 decibels or more at the specified frequencies. However, application of Table VIa does not result in a higher evaluation. In this regard, the Board notes that, using Table VIa, the results of the September 2011 VA examination correspond to Level V hearing in the right ear and Level VIII in the left ear, which only yields a 30 percent evaluation. Based on the foregoing, the evidence does not show that the Veteran is entitled to a rating in excess of 20 percent prior to September 30, 2011. The only audiological testing on record at that time showed hearing loss warranting a 20 percent evaluation. While the Veteran may subjectively believe that his hearing worsened during the period between the July 2007 examination and the September 2011 examination, there are no audiological evaluations of his hearing during that time upon which to base a higher rating. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). Therefore, the date of the VA examination showing increased hearing loss was the appropriate effective date for the increased rating. The evidence also does not show that the Veteran is entitled to a rating in excess of 40 percent for hearing loss on or after September 30, 2011. Audiological test results yield a 40 percent rating, and there are no findings of greater impairment. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1)(2012). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An evaluation in excess of 20 percent prior to September 30, 2011, for bilateral high frequency hearing loss is denied. An evaluation in excess of 40 percent on or after September 30, 2011, for bilateral high frequency hearing loss is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs