Citation Nr: 1307616	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  10-29 049	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder or diabetes mellitus.  

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


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The Veteran served honorably on active duty from February 1967 to December 1968, to include combat service in Vietnam for which he was awarded the Combat Infantryman Badge and the Purple Heart Medal, among other awards and decorations.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions, one of which was entered in August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying the Veteran's claim for service connection for direct and secondary service connection for hypertension.  The other adverse rating decision that forms a basis for the instant appeal was entered by the RO in April 2010, in which a grant of service connection for bilateral hearing loss was implemented, based on the Board's decision of April 2009, with assignment of a 0 percent rating from March 2007. 

Pursuant to his request, the Veteran was afforded a hearing before the Board, sitting at the RO, in November 2011.  A transcript of that proceeding is of record.  At his hearing, a written statement was submitted with other evidence appended, along with a waiver for its initial consideration by the RO.  

In the Veteran's statement to his U.S. Congressman, received by VA in December 2012, the Veteran raised the issue of his entitlement to an increased rating for posttraumatic stress disorder for which a 50 percent rating is in effect.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  



FINDINGS OF FACT

1.  By a written statement, dated in November 2011, the Veteran's representative  withdrew from appellate consideration the issue of entitlement to service connection for hypertension on a direct and secondary basis and the Veteran through his hearing testimony in November 2011 confirmed that withdrawal.  

2.  Not more than a level I hearing impairment of the right ear or more than a level II hearing impairment of the left ear is shown throughout the entirety of the period from March 8, 2007, to the present.  

3.  The schedular criteria are adequate for the evaluation of the impairment resulting from bilateral hearing loss and all indicated manifestations thereof.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal as to the issue of the Veteran's entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder or diabetes mellitus, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

2.  For the period from March 8, 2007, to the present, the criteria for the assignment of an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of the Claim for Service Connection for Hypertension

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

Here, the Veteran's representative by way of his signed, written statement, dated in November 2012, withdrew from appellate consideration the issue of the Veteran's entitlement to service connection for hypertension on direct and secondary bases.  This withdrawal was confirmed by the Veteran during the course of his testimony offered at the Board hearing in November 2012.  Hence, there remain no allegations of errors of fact or law for appellate consideration as to that matter, and as the Board does not have jurisdiction to review the appeal relating thereto, it must be dismissed. 

Initial Compensable Rating for Bilateral Hearing Loss

Duties to Notify and Assist

Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).  The notification obligation in this case was accomplished by way of an April 2008 letter from the RO to the Veteran, addressing his then pending claim for service connection for bilateral hearing loss.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini, supra.  Here, full VCAA notice did not occur prior to RO's initial adjudicatory action in March 2008, in contravention of Pelegrini.  However, notice is taken that following the issuance of full VCAA notice, this matter was readjudicated by means of a rating decision in April 2010, granting service connection and assigning an initial rating and thereby effectively curing any timing deficiency.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006).  Also, this is a claim for initial rating and once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Rather, thereafter, once a notice of disagreement has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 C.F.R. § 3.159(b)(3).  The RO has provided the Veteran the required statement of the case in November 2010 discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations.  In light of the foregoing, and in the absence of any specific allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. 

VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The record includes the Veteran's service treatment records, in addition to a various medical examination reports compiled during postservice years.  Also, the Veteran has not made the RO or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (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).  

The record indicates that VA has afforded the Veteran multiple VA medical examinations in order to ascertain the nature and severity of the disabilities in question.  The reports from these examinations, and the record as a whole, are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issues presented.  As such, further development action relative to the disability herein at issue is not required.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. 

Legal Authority Governing Claims for Initial Ratings

Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes (DCs) identify the various disabilities.  Id.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2. 

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 126 (2001).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  

Analysis

In this instance, service connection for bilateral hearing loss was established by rating action in April 2010.  At that time, a 0 percent evaluation was assigned for bilateral hearing loss under DC 6100.  The Veteran has appealed the initial rating assigned, alleging that the 0 percent rating is inadequate for the level of impairment he experiences.  He takes issue with the means by which a rating for hearing loss is assigned and notes specifically that the degree of hearing loss at 500 Hertz is not considered in the rating process, but only in determining whether service connection is warranted.  He finds this distinction to be unfairly contradictory.  He indicates that he previously used hearing aids, but does not utilize them currently and that he experiences embarrassment while working when asking others to repeat what was said previously due to his inability to hear well.  

For the purpose of rating the Veteran's hearing loss, it is noted that the applicable legal criteria by which the Board is bound call for the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  38 C.F.R. § 4.85.  Such results are then charted at 38 C.F.R. § 4.85, Tables VI and VII. 

Under 38 C.F.R. § 4.86(a) (2012), for evaluation of certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85, if puretone thresholds at each of the four frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. § 4.86(b) indicates that when the puretone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. 

In order to establish entitlement to a compensable evaluation for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met.  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Evaluations of defective hearing range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To evaluate the degree of disability for unilateral service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 

VA audiological examinations were performed in 2007, 2008, and 2010 and in each instance, not more than a level I hearing impairment of the right ear was demonstrated, nor was there a showing a more than a level II hearing impairment of the left ear.  In fact, auditory acuity of the left ear when tested in 2007 was at level II, but on testing in 2008 and 2010, only a level I impairment was identified.  In no instance, was an exceptional hearing deficiency contemplated by 38 C.F.R. § 4.86 shown.  The combination of level I and level II hearing impairment of the right and left ears, respectively, does not warrant the assignment of more than a 0 percent rating under DC 6100.  No other audiological examination or treatment is shown during the relevant time frame.  

Review of the data shows no basis for the assignment of a compensable schedular rating for the Veteran's bilateral hearing loss under DC 6100 at any point in time from March 8, 2007, to the present.  Fenderson, supra.  There is otherwise no showing of any exceptional hearing impairment as set forth in 38 C.F.R. § 4.86.  

The Board has considered the Veteran's statements regarding the severity of his hearing impairment which are credible and probative, but, as noted above, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, supra.  Moreover, the Board is bound by the governing legal authority which prohibits consideration of auditory acuity at 500 Hertz when evaluating the severity of hearing loss and is without the discretion to modify the governing regulations.  The audiological data presented do not permit the assignment of a compensable schedular at any point in time.  

The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (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.  In the present case, the VA audiological evaluations of record contain some findings relevant to the impact of the Veteran's hearing on his daily and occupational living, although this was not accomplished fully on each VA examination undertaken.  However, the Board notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), the U.S. Court of Appeals for the Federal Circuit determined that the phrase "daily life" as used in Part 4 of 38 C.F.R., can be cited to Subpart A, which provides "regulations prescribing the policies and procedures for conducting VA medical examinations."  The Court has previously noted that regulations governing procedures for conducting VA medical examinations are not considered part of the rating schedule because, "[t]he rating schedule consists only of those regulations that establish disabilities and set forth the terms under which compensation shall be provided. A regulation prescribing the policies and procedures for conducting a VA medical examination does not serve these purposes."  As such, the Federal Circuit stated that while the effects of daily life are relevant to the doctor conducting the examination, these effects are not relevant to disability rating specialist.  Therefore, the Board finds, in relying on the decision in Vazquez-Flores, that it is not necessary to do so and therefore, will proceed with the decision.  See Vazquez-Flores v. Shinseki, 580 F.3d at 1280.

The Board has considered whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b).  See Thun v. Peake, 22 Vet. App. 111 (2008).  The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing, especially in the workplace) are contemplated by the rating criteria.  His former use of hearing aids is noted, but there is no indication that there are present signs or symptoms beyond the scope of the applicable rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  There is otherwise no indication in the record that the pertinent DC fails to describe adequately or contemplate the current disability level of the disorder in question, and, as such, the question of extraschedular consideration need not proceed further, as there exists no basis for the assignment of an extraschedular rating. 

As a preponderance of the evidence is against the Veteran's claim, his appeal for a compensable initial rating for bilateral hearing loss must be denied without application of the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b); see Fenderson, supra; see also, Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); 1990); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

ORDER

The appeal involving the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder or diabetes mellitus, is dismissed.  

An initial compensable rating for bilateral hearing loss is denied.  


____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs