Citation Nr: 1307299 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-39 655 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss prior to February 22, 2011. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from February 22, 2011 to November 1, 2012. 3. The propriety of the reduction from 50 percent to 30 percent for bilateral hearing loss based on clear and unmistakable error (CUE) in a March 2011 rating decision. 4. Entitlement to a rating in excess of 30 percent for bilateral hearing loss from November 1, 2012. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to June 1945. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Philadelphia, Pennsylvania. It was remanded by the Board for additional development in January 2011. The Veteran testified before the undersigned Veterans Law Judge at an October 2010 hearing. The Board notes that the Disabled American Veterans has at times submitted correspondence in support of the Veteran's appeal. However, no power of attorney is of record. A letter requesting that the Veteran indicate whether he wished to be represented, and informing him that a power of attorney Form VA 21-22 was needed if he wanted a Veteran's service organization to represent him, was sent to him in September 2012. In September 2012 the Veteran sent VA a signed pro se election form indicating that he wished to represent himself. However, in an accompanying letter he wrote that Disabled American Veterans was representing him, although he also again stated that he wanted to represent himself. Due to the conflicting information provided by the Veteran, another power of attorney clarification letter was sent to him in January 2013. The Veteran submitted a statement that he designated Disabled American Veterans as his power of attorney, but he did not return a signed Form VA 21-22. Since the Veteran was sent two letters informing him of the appropriate procedure for appointing a representative and still did not submit the proper power of attorney authorization form, he is considered unrepresented in this appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of the propriety of the reduction of the rating from 50 percent to 30 percent based on CUE, and entitlement to a rating in excess of 30 percent for bilateral hearing loss beginning November 1, 2012 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to February 22, 2011 the Veteran's bilateral hearing loss is not shown to be manifested by worse than a level VI impairment of auditory acuity in the right ear and level V impairment of acuity in the left ear. 2. Beginning February 22, 2011 The Veteran's bilateral hearing loss is not shown to be manifested by worse than a level IV impairment of auditory acuity in the right ear and level VI impairment of acuity in the left ear. A 50 percent rating was assigned until November 1, 2012, at which time a 30 percent rating was assigned. CONCLUSIONS OF LAW 1. Prior to February 22, 2011 the criteria for a rating in excess of 20 percent for bilateral hearing loss were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.85, 4.86 Diagnostic Code 6100 (2012). 2. From February 22, 2011 to November 1, 2012, the criteria for a rating in excess of 50 percent for bilateral hearing loss were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.85, 4.86 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in September 2007 that explained how VA could help him obtain evidence in support of his claim. The September 2007 letter also informed the Veteran that in order to receive an increased rating for bilateral hearing loss, he had to show that it got worse, and it explained how VA assigns ratings and effective dates for service connected disabilities. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including private treatment records, written statements from the Veteran and various relatives, as well as a transcript of the Veteran's testimony at the October 2010 hearing. The Veteran was afforded multiple VA examinations in connection with his claim which adequately documented his symptoms and functional losses due to his impaired hearing. The Board finds that VA satisfied its duties pursuant to the VCAA in this case as to the issues decided herein. Increased Rating The Veteran contends that his hearing loss is worse than currently rated. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). A. The period prior to February 22, 2011 The Veteran was examined by VA with respect to his hearing loss in October 2007. Functional effects were that Veteran described problems understanding speech in the presence of background noise. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 65 65 80 LEFT 45 60 60 80 The average pure tone threshold in decibels was 65 for the right ear and 61.25 in the left ear. The Veteran's speech recognition ability was 64 percent in the right ear and 88 percent in the left ear. The diagnosis was moderate to severe sensorineural hearing loss. This equates to a Level VI level of impairment of auditory acuity in the right ear and a Level III impairment of auditory acuity in the left ear. This yields a 10 percent rating. The Veteran was actually rated 20 percent disabled for hearing loss at this time. The Veteran submitted a letter from his doctor dated in January 2008 which stated that the Veteran had severe sensorineural hearing loss which had worsened in the past six years. As a result, he had difficulty understanding words and communication and needed hearing aids. A copy of an audiometric test was submitted, but it was inadequate for rating purposes because speech recognition testing was not performed using the Maryland CNC test as required by 38 C.F.R. § 3.385, as indicated by an August 2012 letter from the private doctor stating that they do not use this test. A January 2008 letter from the Veteran indicated that he was having increased difficulty with speech discrimination and communicating with people, and hearing aids did not help. The Veteran was afforded another VA examination in April 2008. The situation of greatest difficulty was understanding speech in the presence of background noise; the Veteran needed people to face him in order to understand them. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 55 65 65 80 LEFT 50 60 60 80 The average pure tone threshold in decibels was for 66 the right ear and 62 in the left ear. The Veteran's speech recognition ability was 72 percent bilaterally. The diagnosis was moderate to severe sensorineural hearing loss. The Veteran had an exceptional pattern of hearing impairment in his right ear according to the definition of that term at 38 C.F.R. § 4.86. When a Veteran has an exceptional pattern of hearing loss, the rating specialist will determine the Roman numeral for hearing impairment from either Table VI or Table VIa (which addresses puretone thresholds alone), whichever results in the higher numeral. The Veteran's level of hearing impairment was VI in the right ear (Table VI yielded a higher result than Table VIa) and V in the left ear. The equates to a 20 percent rating. On his VA Form 9 dated in December 2008 the Veteran reported that he was told there had been a substantial decline in his hearing over the past several months. A letter from the Veteran's daughter and her husband dated in December 2009 indicated that the Veteran's ability to hear conversations, the phone ringing, and car horns had worsened. They do not bother calling him on the phone when he is home alone because they know he will not hear it. It was hard for the Veteran to understand what people were saying. The Veteran's hearing was examined again in January 2010. The Veteran reported that he misunderstands conversations, has to turn the television up loud, and has difficulty hearing in background noise. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 55 60 60 75 LEFT 50 60 60 75 The average pure tone threshold in decibels was 62 for the right ear and 61 for the left ear. The Veteran's speech recognition ability was 66 percent in the right ear and 68 percent in the left ear. The diagnosis was moderate to moderately severe sensorineural hearing loss and poor speech discrimination in both ears. The Veteran has an exceptional pattern of hearing loss in his right ear. Applying the appropriate tables at 38 C.F.R. § 4.85, this yields a level VI impairment of auditory acuity in the right ear and a level V impairment of auditory acuity in the left ear. This yields a 20 percent rating. The Veteran testified at a hearing in October 2010. The Veteran testified that he had difficulty understanding spoken words. He needs people to repeat things. He has more trouble in the presence of background noise. Hearing aids did not help. The evidence does not show that the Veteran was entitled to a rating in excess of 20 percent for his hearing loss prior to February 22, 2011. Applying the appropriate tables in the rating schedule, multiple examinations showed hearing loss that was 20 percent disabling. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The Veteran's symptom of hearing loss is expressly contemplated by the rating schedule. There is no indication of material interference with employment due to hearing loss because the Veteran is retired. There is no evidence of hospitalization for hearing loss. B. February 22, 2011 to November 1, 2012 The Veteran's hearing was next examined on February 22, 2011. At that time he reported difficulty talking with people and that he had to turn up the television. At that time his pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 50 60 60 65 LEFT 55 60 55 75 The average pure tone threshold in decibels was 58.75 for the right ear and 61.25 for the left ear. The Veteran's speech recognition ability was 76 percent in the right ear and 72 percent in the left ear. The diagnosis was moderately severe hearing loss. The Veteran had an exceptional pattern of hearing impairment in the left ear. Applying the appropriate tables, this yields a Level IV level of auditory acuity in the right ear and a Level VI level of auditory acuity in the left ear. This equates to a 20 percent rating. A March 2011 rating decision by the RO raised the Veteran's disability rating for his hearing loss to 50 percent. It was subsequently determined that the rating decision shows that the rating officer misunderstood the results of the February 2011 hearing test. He used speech reception thresholds rather than speech discrimination scores to determine speech discrimination. This resulted in the application of an erroneous rating. Nevertheless, the 50 percent rating was assigned. The question for this period is whether there is any basis for a higher rating to be assigned. There is no basis for assignment of a higher rating. As previously noted, the March 2011 rating decision was based on a misreading of a February 2011 report of examination. Speech discrimination scores of 45 bilaterally were used instead of the actual values, which were 76 in the right ear and 72 in the left ear. Use of the actual values actually equated to a 20 percent rating. Accordingly, the evidence of record at the time of the March 2011 rating decision did not support a 50 percent rating for bilateral hearing loss. The Veteran submitted a letter in April 2011 from someone who had served with him, but this did not address the current severity of his hearing loss. He submitted a letter in May 2012 from an acquaintance who indicated that he had to speak loudly and repeat things when talking to the Veteran. The Veteran's hearing was reexamined on August 13, 2012. A Disability Benefits Questionnaire was used. However, the results of that examination are inconsistent with prior examinations and are addressed in the remand portion of this decision. In any event, even if the values from that test are used, it would not yield a rating above 50 percent prior to November 1, 2012. The period thereafter is addressed in the remand portion of this decision. ORDER A rating in excess of 20 percent for bilateral hearing loss prior to February 22, 2011 is denied. A rating in excess of 50 percent for bilateral hearing loss from February 22, 2011 to November 1, 2012 is denied. REMAND The Veteran submitted a hearing loss Disability Benefits Questionnaire (DBQ). Although this is a VA form, there is no indication as to whether it was actually filled out by a VA audiologist as opposed to a private audiologist. According to the DBQ, the average pure tone threshold in decibels was 65 for the right ear and 63.75 for the left ear. This is generally consistent with the pure tone thresholds recorded on prior VA examinations, which showed right ear pure tone thresholds ranging from 58 to 66 Hertz and left ear pure tone thresholds ranging from 61 to 62 Hertz. However, the speech recognition scores documented on the DBQ are dramatically lower than what was recorded on past VA examinations. They are, however, consistent with the speech discrimination scores that the Veteran received when he was tested by his private audiologist using a test other than the Maryland CNC test. Although the DBQ states on its face that speech discrimination scores are to come from the Maryland CNC word list, the difference between these scores and prior scores on the Maryland CNC and the similarity with the scores on another speech discrimination test suggests that the Maryland CNC test may not have been actually used to determine speech discrimination. In any event, even if the scores are valid, there would need to be some explanation for such a dramatic reduction in speech discrimination scores without a corresponding reduction in pure tone thresholds. The report is inadequate, and the Veteran should be afforded a new VA examination. During the course of this appeal, as noted, a 50 percent rating was assigned for part of the period. That rating was reduced when it was found there was clear and unmistakable error in the rating that made that assignment. There were subsequent ratings that found the CUE and reduced the rating to 30 percent. The appellant was provided copies of the rating actions, but was not provided with a supplemental statement of the case concerning the finding of the CUE and the propriety of the reduction. In order to assure due process, such document should be issued so that the appellant may respond if he so desires. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a new VA examination of his hearing. All symptoms and functional effects should be documented. Testing should include pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz as well as speech discrimination testing using the Maryland CNC word list. The Veteran's speech recognition scores have ranged from 64 to 76 in the right ear and 68 to 88 in the left ear. If speech discrimination scores vary significantly from what has been recorded in prior examinations, the examiner should provide an explanation for this. The examiner should also address the validity of the August 2012 DBQ findings in light of current and past findings. 2. The Veteran should be provided with a supplemental statement of the case concerning the finding of CUE and the propriety of the reduction of the rating from 50 percent to 30 percent disabling. He should be afforded sufficient time to respond thereto. 3. After completion of the above development, the Veteran's current increased rating claim should also be re-adjudicated. If the determination remains less than fully favorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. (These last two actions may be taken together if that proves most efficient.) Thereafter, if necessary, the case should be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs