Citation Nr: 1305067	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  09-04 053	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial, compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel



INTRODUCTION

The Veteran had active duty service from June 1969 to December 1971.

This appeal to the Board of Veterans' Appeals (Board) arose from a February 2008 rating decision in which the RO awarded service connection and assigned an initial 0 percent ( noncompensable) rating for bilateral hearing loss, effective April 9, 2007.  In June 2008, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating.  A statement of the case (SOC) was issued in December 2008 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2009. 

As the Veteran disagreed with the initial rating assigned following the award of service connection for bilateral hearing loss, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).  

In February 2011, the Veteran filed an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) appointing DAV as his power of attorney (POA).  This document also served to revoke his previous designation of the American Legion as his POA.

In April 2012, the Veteran's VA treatment records dated through April 2012 were added to the paperless, electronic (Virtual VA) claims processing system.  The Veteran's representative submitted a waiver of initial RO consideration of this evidence in February 2013.  See 38 C.F.R. §§ 20.800, 20.1304 (2012). 


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  Since the effective date of the award of service connection, audiometric testing has revealed no worse than Level II hearing in each ear. 


CONCLUSION OF LAW

The criteria for an initial, compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012).
 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  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. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R.                  § 3.159(b)(1). 

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice 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).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.

VCAA-compliant 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.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, after the award of service connection for bilateral hearing loss, and the Veteran's disagreement with the initial rating assigned, a December 2008 SOC set forth the criteria for higher ratings for hearing loss, as well as provided the Veteran with information pertaining to what information and evidence was needed to support such a claim for a higher rating.  A June 2007 letter provided the Veteran with information pertaining to what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA.  Further, a June 2007 letter provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.

After issuance of the above-described notice, the April 2009 supplemental SOC (SSOC) reflects readjudication of the claim for a higher rating.  Hence, the Veteran is not shown to be prejudiced by the timing of the December 2008 SOC.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of the Veteran's VA outpatient treatment records, various private treatment records and the reports of the VA examinations.  Also of record and considered in connection with the appeal is the various written statements provided by the Veteran, and by his current and former representatives, on his behalf.  The Board also finds that no additional RO action to further develop the record in connection with claim for a higher rating for bilateral hearing loss, prior to appellate consideration, is required.

The Board notes that in an October 2012 Informal Hearing Presentation (IHP), the Veteran's former representative argued that the word recognition testing results of the March 2009 examination were invalid as the examiner had turned the testing volume up to 95 decibels in the right ear and 80 decibels in the left ear.  In addition, they argued that the examination reports should detail when the equipment was last calibrated.  The Handbook of Standard Procedures and Best Practices for Audiology (Handbook), which was published by VA's Compensation and Pension Service, instructed that an examiner was to begin testing for the speech recognition at 40 decibels and that the Maryland CNC test was to be presented at the level of maximum performance, not to exceed 100 decibels.  The March 2009 examiner adhered to proper testing procedures under VA guidelines by increasing the decibel level while administering the Veteran's speech recognition test.  Moreover, the Board notes that the results of the March 2009 examination are also consistent with those reflected in the report of an August 2006 private audiology evaluation submitted by the Veteran, in that word recognition testing was conducted at 80 decibels in the right ear and 70 decibels in the left ear during that private evaluation.  In addition, the Handbook requires that the VA clinics maintain records of electro-acoustic calibration, daily listening checks and electrical safety inspections, but does not require that this information be provided in the VA examination reports.  The Board therefore finds that this argument to be without merit.

In addition, the Board notes that the Veteran's former representative's references a March 9, 2011 VA audiology examination in its October 2012 IHP.  However, such an audiological examination was not conducted on that date.  It appears that this is a drafting error as the VA examination in question was conducted on March 11, 2009. 

Moreover, the Veteran has argued that the results of VA's speech recognition testing was invalid or unfair as the testing was conducted with the benefit of headphones, that the examiner spoke too slowly and that the "passing" level of  94 percent was too high.  The Board notes that a "passing" level of 94 percent is in reference to the regulatory criteria for determining hearing loss for VA purposes and, once service connection has been granted, hearing loss is rated based upon the puretone threshold average and speech discrimination percentage.  See 38 C.F.R. § 3.385.  The Handbook provides that audiological testing be conducted in sound-controlled rooms with the use of insert earphones.  In addition, the Handbook indicates that the purpose of speech recognition testing was to obtain the patient's best performance during optimum, controlled and reproducible conditions and specifically states that the speech recognition score was not intended to stimulate real-world performance.  This argument is therefore without merit.  

In addition, the Board notes the arguments of the Veteran's current representative that the most recent VA examination, which was conducted in March 2009, was "too old" for rating purposes.  However, neither the Veteran nor his representative have argued that there has been any increase in severity of this disability during the pendency of the appeal.  The Board is not required to remand an appealed disability-benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared; thus, no remand for such purpose is warranted in this case.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.   See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995). 

In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  

II.  Higher Rating

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson, 12 Vet. App. at 126. 

Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation.   Ratings for hearing impairment range from noncompensable to 100 percent based on 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 1,000; 2,000; 3,000; and 4,000 cycles per second.   To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven 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.

Hearing tests are to be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII.  See 38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) 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). 

If impaired hearing is service connected in one ear only, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  38 C.F.R.      §§ 3.383(a)(3), 4.85(f).   

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where the question for consideration is entitlement to a higher initial rating assigned following the award of service connection, evaluation of the evidence since the effective date of the award of service connection and consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson, 12 Vet. App. at 126. 

Considering the pertinent evidence in light of the above, the Board finds that the claim for higher rating for bilateral hearing loss must be denied.

The report of an August 2006 private audiology evaluation reflects the Veteran complaints of difficulty hearing or understanding the television or other entertainment, while in small groups and with background noise as well as communication difficulties.  Unaided discrimination was 92 percent at 80 decibels in the right ear and 100 percent at 70 decibels in the left ear; it is not clear whether such testing was performed using the Maryland CNC test.  An accompanying audiological examination measured the Veteran's aurical tone bilaterally, however, no key was provided and the graphic results cannot be interpreted.  Moderate sensorineural loss in the right ear and moderate mixed loss in the left ear were found by the provider.  The provider opined that this hearing loss often resulted in difficulty with conversation speech and increased difficulty hearing in noise and with distance.

In a June 2008 NOD, the Veteran wrote that he wore headphones during his audiology examination and that the volume was "much louder" than what would have occurred during a normal conversation.

The report of a February 2008 VA audiology examination reflects the Veteran reports of difficulty hearing in crowds and with background noise.  Speech audiometry, using the Maryland CNC Word List, revealed speech recognition ability of 100 percent, bilaterally.  On audiometric testing, pure tone thresholds, in decibels, were as follows:

Hertz	1,000	2,000	3,000	4,000	Avg.
Right	50	50	60	80	60	
Left	 	40	40	65	75	55

The report of a March 2009 VA audiology examination reflects the Veteran reports of difficulty hearing with background noise.  Speech audiometry, using the Maryland CNC Word List, revealed speech recognition ability of 100 percent, bilaterally.   On audiometric testing, pure tone thresholds, in decibels, were as follows:

Hertz	1,000	2,000	3,000	4,000	Avg.
Right	55	55	65	90	66.25	
Left	 	40	40	70	75	56.25

In a November 2009 substantive appeal, the Veteran wrote that he "guessed" during the word recognition test but happened to guess correctly.

Using Table VI, the results of the Veteran's February 2008 VA audiology examination reveals Level II hearing in the right ear and Level II hearing in the left ear.  This hearing level warrants a noncompensable rating.  The results of March 2009 VA audiology examination reveals Level II in the right ear and Level I hearing in the left ear.  This hearing level warrants a noncompensable rating.  The results of these examinations do not meet the criteria for an exceptional pattern of hearing impairment.  

Application of these findings to Table VII corresponds to a zero percent (noncompensable) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100, as is currently assigned.  The Board further observes that the pure tone thresholds recorded on the VA audiological evaluations in February 2008 and March 2009 do not reflect exceptional hearing impairment as defined by regulation.  See 38 C.F.R. § 4.86.

In view of the above, the Board finds that the Veteran is not entitled to an initial, compensable rating for bilateral hearing loss at any point since the effective date of the award of service connection.  

The Board has considered the Veteran's assertions as to the severity of his hearing loss, and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher.  In addition, the Board notes the argument of the Veteran's current representative that the Veteran's bilateral hearing loss more nearly approximates a 10 percent rating as his audiological evaluations results were close to those required for an exceptional pattern of hearing loss.  However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination based on the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

As a final point, the Board notes that, in the February 2008 audiology examination report, the audiologist only cursorily discussed the functional effects of the Veteran's bilateral hearing loss.  The March 2009 audiological examination report does include a discussion of such functional effects.  While such factors would be relevant to a claim for a higher rating on an extra-schedular basis (see Martinak v. Nicholson, 21 Vet. App. 447 (2007)), here, neither the Veteran nor his current or former representative has asserted the Veteran's entitlement to an extra-schedular rating for bilateral loss, and such is not otherwise raised by the evidence of record.   See Colayong v. West, 12 Vet. App. 524, 536 (1999).  Hence, the absence of a full discussion as to functional effects does not render February 2008 audiological evaluation report inadequate for rating purposes.

For all the foregoing reasons, the Board finds that, there is no basis for staged rating for the Veteran's disability, pursuant to Fenderson, and that the claim for higher rating must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical nature of deriving schedular ratings for hearing loss, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

An initial, compensable rating for bilateral hearing loss is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs