Citation Nr: 1307046 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-29 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to an initial disability rating in excess of 0 percent for left ear hearing loss. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and issued by the RO in Oakland, California. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran was scheduled for a hearing before the Board in August 2012, but cancelled his hearing prior to that time. Therefore, although a hearing has not been held, the Board has met its obligation to provide him the opportunity to testify before a Veterans Law Judge, and no further action is necessary in this regard. 38 C.F.R. § 20.700 (2012). FINDINGS OF FACT 1. The Veteran's right ear hearing loss was not demonstrated to a compensable degree within one year of discharge from active duty. 2. The evidence of record does not show right ear hearing loss to be etiologically related to a disease, injury or event in service. 3. The Veteran's service-connected left ear hearing loss is not manifested by a level of hearing acuity necessary for a compensable rating. CONCLUSION OF LAW 1. The criteria for the establishment of service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1131, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for an initial compensable evaluation for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including 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 rating. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. With respect to the Veteran's claim for service connection for right ear hearing loss disability, a May 2009 letter provided notice, before the initial unfavorable decision in November 2009, regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. It also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Veteran's claim for an increase in the initial disability rating for left hearing loss arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Veteran's service and VA treatment records have been obtained and considered. In addition, private medical treatment records are associated with the Veteran's file. He also was provided with audiological VA examinations in October 2009 and October 2012. The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners either reviewed the claims file or were otherwise 'informed of the relevant facts,' including the history of the disability from information obtained from the Veteran, considered the contentions of the Veteran, and addressed the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, neither the Veteran nor his representative has alleged any deficiency with regard to these examinations, nor have they alleged any resulting prejudice. The Veteran was also provided with an opportunity to testify at a hearing before the Board, but he declined. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection for Right Ear Hearing Loss Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2012). Service connection for certain chronic disorders, including organic diseases of the nervous system such as hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385 (2012). "[I]mpaired 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." The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the instant case, the Veteran seeks service connection for a right ear hearing loss disability. The Veteran contends that he currently has hearing loss as a result of the acoustic trauma he suffered during active service. Specifically, the Veteran has asserted that his hearing loss was due to military noise exposure from jet engines. He has stated that that while he was provided headsets while on duty, the equipment was primarily for communication purposes and not for hearing protection. The Veteran's July 1969 separation examination audiogram resulted in "normal hearing" in the right ear. The audiological evaluation showed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 15 The thresholds in this Veteran's case at service separation were within the normal hearing range at 20 or less decibels for the right ear. A review of the Veteran's service treatment records show no complaints, treatment or diagnosis of hearing loss for the right ear. Private treatment records have been submitted to support the Veteran's claim for hearing loss in the right ear. These records document audiological examinations from 1975 to 2009. The post-service evidence shows no findings of hearing loss, for VA purposes, until 2002. The private audiological examination in August 2002 showed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 45 45 50 It was noted that the Veteran had mild to moderate hearing loss in his right ear. As such, the criteria for hearing loss as set forth in 38 C.F.R. § 3.385 has been met for the right ear. The Veteran was afforded a VA audiological examination in October 2009. Here, the Veteran reported that while in service, his primary specialty was as an aircraft mechanic. The Veteran noted no occupational or recreational noise exposure since service. Upon examination, the puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 60 60 65 The Veterans speech recognition score was 96 percent. The VA examiner noted that the Veteran had bilateral sensorineural hearing loss, but with only left ear hearing loss present at service separation, she concluded that while current left ear hearing loss was related to service, it was less likely than not current right ear hearing loss was due to military noise exposure. More recently, the Veteran was afforded an audiological examination in October 2012. The VA audiogram results indicated that the Veteran had sensorineural hearing loss in the right ear, and again, the examiner noted that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The Veteran's puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 35 70 70 Based on the foregoing, the Board concludes that the greater weight of the evidence is against the service connection claim. Both the 2009 and 2012 VA examiners found the Veteran's hearing loss was not related to service. Notably, the 2009 examiner conducted a comprehensive clinical examination and evidentiary review, and indicated familiarity with the Veteran's pertinent medical and lay history. The examiner provided a rationale regarding the Veteran's current condition and offered an adverse opinion regarding the relationship between the Veteran's active duty service and the results of the examination. Further, there is no competent medical evidence of record reflecting that the Veteran demonstrated hearing loss of the right ear to a compensable degree within one year of discharge from active duty, and there is no medical evidence of record indicating that the Veteran's right ear hearing loss was caused or aggravated by his active duty service. The Board acknowledges the Veteran's contentions that he was exposed to noise during service and has a current a hearing loss disability in his right ear. The Board does not doubt the credibility of the Veteran's reports of being exposed to noise during service. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). As the Board has considered the Veteran's contention, the Board ultimately places more probative weight on the opinion of the October 2009 VA opinion, and other evidence describe above which is adverse to the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable in the instant appeal, and the claim is denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). III. Increased rating for left ear hearing loss Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7. Where the claimant has expressed dissatisfaction with the assignment of an initial rating 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 (1999). The Veteran contends that he is entitled to a higher initial compensable disability rating for left ear hearing loss because the condition affects his ability to communicate with family and friends. He states that it is difficult to understand what others are saying on the telephone, he cannot watch movies and has trouble understanding a certain pitch, eg. sounds analogous to a jet engine. He requested that the RO reevaluate his service-connected left ear hearing loss which has been evaluated as 0 percent disabling under 38 C.F.R. § 4.85, Diagnostic Code 6100. In cases for which the evaluation of hearing loss is at issue, ratings range from non-compensable 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a) (2012). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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. When only one ear is service connected, the non service connected ear is given Level I hearing loss. 38 C.F.R. § 4.86(b) (2012). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85 (c). The Veteran underwent a private audiological examination and evaluation in August 2009. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 45 65 75 70 The Veteran's left ear puretone threshold average was 63.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 40 percent in the left ear, although the specific test used was not indicated. Nevertheless, assuming it was the Maryland CNC test, the results from the August 2009 VA examination yields a finding of Level IX hearing loss in the left ear. Where hearing loss is at Level IX in the service-connected ear and the other ear is not service connected, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85 (2012). The findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. At a VA Compensation and Pension audiology examination in October 2009, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 35 55 60 60 The Veteran's left ear puretone threshold average was 52.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the left ear. Applying the results from the October 2009 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear. Where hearing loss is at Level I in the service-connected ear and the other ear is not service connected, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85 (2012). The findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. At a VA Compensation and Pension audiology examination in October 2012, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 50 65 75 75 The Veteran's left ear puretone threshold average was 66 decibels in the left ear. Speech audiometry revealed a speech recognition ability of 56 percent in the left ear. However, the examiner noted that the use of this number was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., which would make the combined use of the puretone average and speech recognition scores inappropriate. As noted above, designation of hearing impairment based only on puretone threshold averages can be used when the examiner certifies that the use of speech discrimination testing is not appropriate. See 38 C.F.R. § 4.85(c). In other words, the numeric designations of the Veteran's hearing impairment will be based only on the puretone threshold averages, and not on both the puretone threshold averages and the speech discrimination percentages. In this regard, when the puretone average for the October 2012 VA audiological examination is applied to Table VII, a Level V designation results. Where hearing loss is at Level V in the service-connected ear and the other ear is not service connected, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85 (2012). The findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. The VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and are highly probative. The Veteran submitted information regarding his difficulties with his hearing and the Board finds no prejudice in deciding the claim. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted. The Board does not discount the difficulties the Veteran has had with his service-connected left ear hearing loss and understands the Veteran's complaints regarding the functional impact of his hearing loss on his daily life. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. The findings on the objective examinations are more probative than the lay contentions as to the extent of hearing loss. The Board finds that competent medical evidence of record fails to demonstrate that an initial compensable rating is warranted for the Veteran's service-connected left ear hearing loss at any point during the course of the claim. Thus, the Board finds that the currently assigned 0 percent evaluation is appropriate for the entire period. See Fenderson v. West, 12 Vet. App. 119 (1999). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's left ear hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's service-connected left ear hearing disability and referral for consideration of extraschedular rating is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's hearing loss, the question of entitlement to a TDIU is not raised. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, supra; Gilbert v. Derwinski, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable rating for left ear hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs