Citation Nr: 1304607 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-36 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran had active duty service from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 2008, a statement of the case was issued in August 2009, and a substantive appeal was received in September 2009. FINDINGS OF FACT The Veteran's service-connected right ear hearing loss is productive of no higher than Level VIII hearing acuity; service connection has not been established for left ear hearing loss. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability evaluation for the Veteran's service connected right ear hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 3.321(b), Part 4, including §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a June 2008 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran prior to the November 2008 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the June 2008 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. The Board also stresses that since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in June 2008), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, included from the Veteran's Guard service, and private medical records. The Veteran has not reported that he has obtained VA treatment. The Veteran was afforded VA fee-based examinations in November 2008 and May 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination reports obtained contain sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. Relevant to the Veteran's initial evaluation for his right ear hearing loss disability, the Board notes that, in Martinak v. Nicholson, 21 Vet.App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, 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. The Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Id. In this case, the November 2008 and May 2010 VA examiners noted that the Veteran had problems hearing and distinguishing sounds. Moreover, the Veteran has not asserted any other functional effects and after he reported on his substantive appeal in September 2009 that his right ear hearing loss was worse, he was afforded the May 2010 VA examination. At no time has the Veteran reported that his right ear hearing loss was a debilitating condition for him or that it was functionally devastating to him, as stated in the December 2012 statement from his representative that referred to bilateral hearing loss, for which the Veteran is not service-connected. Therefore, the Board finds the November 2008 and May 2010 VA examinations is adequate under Martinak and the functional effects of his right ear hearing loss disability were adequately addressed to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). Accordingly, the Board must proceed with appellate review based on the evidence now of record. See generally 38 C.F.R. § 3.159(c)(4). Legal Criteria The present appeal involves the Veteran's claim that the severity of his service-connected right ear hearing loss warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as 'staged' ratings. Id. at 126. In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometric test. 38 C.F.R. § 4.85. Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment for VA purposes must be conducted by a State-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds 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 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. However, neither of these provisions apply in this Veteran's appeal. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran submitted the original claim seeking service connection for hearing loss in June 2008. He submitted private hearing acuity testing, which included the results in graph form. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 45 The private audiologist include a speech recognition score of 100 percent for the right ear; however, it is unclear whether this speech recognition score was obtained using the Maryland CNC Test. At the time of the private June 2008 audiological evaluation, the Veteran was shown to have an average puretone hearing loss in the right ear of 20 decibels, and with 100 percent speech discrimination, which translates to a Roman numeral designation of I for the right ear. 38 C.F.R. § 4.85, Table VI. Since the Veteran is not service connected for the left ear, the left ear is assigned a Roman numeral designation of I, subject to 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The special provisions of 38 C.F.R. § 4.86 are not applicable. In this case 38 C.F.R. § 3.383 does not apply because the right ear does not warrant a compensable evaluation and the left does not meet the criteria of 38 C.F.R. § 3.385 for an impaired hearing disability. Thus, when applying Table VII, Diagnostic Code 6100, level I for the left ear and level I for the right ear equates to a zero percent disability evaluation. On the authorized audiological evaluation in November 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 10 50 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. His current symptoms were being hard of hearing, experiencing a thumping sound, and some sharp pains. He had not sought any medical treatment and the only functional impairment he reported was having difficulty hearing sounds at times. The examiner assessed normal hearing in the left ear and moderate loss in the right ear. At the time of the November 2008 VA fee-based examination, the Veteran was shown to have an average puretone hearing loss in the right ear of 18.75 decibels, with 100 percent speech discrimination, which translates to a Roman numeral designation of I for the right ear. 38 C.F.R. § 4.85, Table VI. Since the Veteran is not service connected for the left ear, the left ear is assigned a Roman numeral designation of I, subject to 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The special provisions of 38 C.F.R. § 4.86 are not applicable. In this case 38 C.F.R. § 3.383 does not apply because the right ear does not warrant a compensable evaluation and the left does not meet the criteria of 38 C.F.R. § 3.385 for an impaired hearing disability. Thus, when applying Table VII, Diagnostic Code 6100, level I for the left ear and level I for the right ear equates to a zero percent disability evaluation. On the authorized audiological evaluation in May 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 25 25 20 30 The narrative portion of the report was to the effect that speech audiometry revealed initial speech recognition ability of 40 percent in the right ear. The Board notes, however, that the next page of the report appears to show 100 percent speech recognition under the Maryland CNC speech test results. In the narrative section, the examiner assessed the right ear speech recognition score as excellent. The Veteran again reported that he had not sought any treatment for his hearing loss and reported his current symptom as being hard of hearing. Although the actual speech recognition score from the May 2010 examination is somewhat unclear, if the Board uses the 40 percent result which is most favorable to the Veteran, this would translate to a Roman numeral designation of VIII for the right ear. 38 C.F.R. § 4.85, Table VI. Since the Veteran is not service connected for the left ear, the left ear remains assigned a Roman numeral designation of I. See 38 C.F.R. §§ 3.383, 4.85(f). Thus, when applying Table VII, Diagnostic Code 6100, level VIII for the right ear and level I for the left ear equates to a zero percent disability evaluation even if the 40 percent speech recognition score is used. It is readily clear from the medical evidence that a compensable rating for right ear hearing loss is not warranted. However, in this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. As noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet.App. 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Applying the 2008 and 2010 audiological tests result to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet.App. 88 (1996). The Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). In Thun v. Peake, 22 Vet.App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. As noted above, the Court has found that the schedular criteria for hearing loss may not adequately address the functional effects that the Veteran's disability has on his daily activities. However, in this case, 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 his service-connected right ear hearing loss disorder resulted in marked interference with employment, or any interference with employment, or necessitated frequent periods of hospitalization, as the Veteran reported he had not sought any treatment at all, so as to render impractical the application of the regular rating schedule standards. Although, there has been indication that the Veteran frequently has difficulty hearing sounds, the evidence does not show that this affected his ability to work. Further, there is no evidence to show that the Veteran has ever been hospitalized for his hearing loss. In the absence of such factors, the Board finds that 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 An initial compensable rating for right ear hearing loss is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs