Citation Nr: 1303899 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-10 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Board remanded the claim for further development. The requested development has been substantially complied with and the claim is ready for appellate review. FINDING OF FACT Bilateral hearing loss disability is manifested by Level I hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See 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). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. In letters dated in November 2004 and May 2012 the Veteran was advised of the evidence necessary to support his claim for an increased disability rating. He was invited to submit or identify evidence supportive of his claim. The evidence of record was listed and the Veteran was told how VA would assist in obtaining additional relevant evidence. The May 2012 letter also addressed the manner in which VA determines disability ratings and effective dates. In June 2009 the Veteran was provided with the specific diagnostic criteria under which his hearing loss disability is evaluated. Except as discussed below, the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. While not all of the required notice was provided prior to the initial rating decision, the Board notes that following issuance of the letters the issue was readjudicated in a Supplemental Statement of the case of November 2012. Accordingly, any error with the timing of the notice is not prejudicial. With respect to VA's duty to assist, relevant VA and private records have been obtained and associated with the record. The Veteran has been afforded two VA examinations. The Board finds that the second examination of May 2012 is adequate in that is was performed by a neutral, skilled provider who reviewed the file and offered sufficient rationale for his conclusions. The Board observes 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 (2011). Here, the May 2012 examiner included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects. The Veteran has not asserted that there is any deficiency in the May 2012 VA examination. While the March 2007 VA examination contains the objective audiometric findings, it does not include a statement on the functional impairment caused by the bilateral hearing loss disability. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d) (2012). 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. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz in the either ear. As such § 4.86 does not apply. Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating. The Veteran seeks a compensable evaluation for his bilateral hearing loss disability. He maintains that his hearing loss is worse than reflected by the current noncompensable rating. The Board notes that the March 2007 VA examination is not, as a whole adequate, as it does not include a statement on the functional impairment. The examination does include, however, audiometric findings and speech discrimination scores. These findings are objective and remain relevant evidence that must be considered in this decision, regardless of the overall inadequacy of the examination report. At the March 2007 VA examination, the Veteran complained he cannot understand speech in the presence of competing noise. Diagnostic testing resulted in the following puretone thresholds: HERTZ 1000 2000 3000 4000 RIGHT 10 15 75 90 LEFT 10 20 40 45 Average puretone thresholds were 48 on the right ear and 29 on the left ear. Speech discrimination scores were 94 on the right ear and 92 on the left ear. An additional VA examination was carried out in May 2012. Puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 85 100 LEFT 10 15 40 45 Average puretone thresholds were 55 in the right ear and 28 in the left ear. Speech recognition scores were 96 percent in the right ear and 94 percent in the left ear. The examiner noted that the Veteran was functionally impaired in that people have to repeat themselves all the time so he can hear them and this affects the ordinary conditions of his daily life. The Board observes that application of the regulation to the findings on the March 2007 audiometric evaluation results in a numeric designation of I bilaterally. The application of the regulation to the findings of the May 2012 audiometric evaluation results in a numeric designation of II for the right ear and I for the left. A noncompensable evaluation is warranted when those values are applied to Table VII. 38 C.F.R. § 4.85, 4.85, Diagnostic Code 6100 (2012). Accordingly, the Board concludes that the current noncompensable evaluation is appropriate. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the Veteran that the service- connected hearing loss disability is of such nature or severity so as to rendere impractical the application of the regular rating schedule standards. The Board acknowledges the Veteran's belief that he is entitled to a compensable disability rating. However, the objective findings associated with audiometric testing do not support a compensable evaluation. Furthermore, with regard to whether the schedular criteria for hearing loss are adequate in this case, although the assignment of disability evaluations is based on a mechanical application of numerical tables to the numerical findings upon audiological evaluation, the Board finds that the numerical criteria in the rating schedule contemplate the impairment of function that is experienced by the Veteran. In this regard, 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 particular, the Board notes 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. There mere fact that his rating is noncompensable does not place render his hearing loss disability outside the nature of disability that is contemplated by the rating schedule. The Board acknowledges the Veteran's argument that his bilateral hearing loss is worse than reflected by the noncompensable rating. However, the Board has determined that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. The schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Entitlement to a compensable rating for bilateral hearing loss disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs