Citation Nr: 1310086	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-20 957	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a compensable rating for left ear hearing loss.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Zenzano, Associate Counsel
 






INTRODUCTION

The Veteran served on active duty from April 1963 to August 1966 and from April 1971 to May 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Board remanded the case in November 2012 for additional development and the case now returns for further appellate review.  As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the November 2012 remand order and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.  Such contains VA treatment records that were considered in the February 2013 supplemental statement of the case.


FINDING OF FACT

For the entire appeal period, the Veteran's nonservice-connected right ear is assigned Level I hearing, and he has no worse than Level I hearing in the left ear.


CONCLUSION OF LAW

For the entire appeal period, the criteria for a compensable rating for left ear 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, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VII (2012).


REASONS AND BASES FOR FINDING 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).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 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.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a September 2008 letter, sent prior to the initial unfavorable decision issued in July 2009, and an October 2009 letter advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, the September 2008 letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra.   

While the October 2009 letter was issued after the initial July 2009 rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter.  Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006).  The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim.  See Prickett v. Nicholson, 20 Vet. App. 370 (2006).  In the instant case, after the October 2009 letter was issued, the Veteran's claim was readjudicated in the March 2010 statement of the case and February 2013 supplemental statement of the case.  Therefore, any defect with respect to the timing of the VCAA notice has been cured. 

Relevant to the duty to assist, the Veteran's VA treatment records dated through January 2013 have been obtained and considered.  Additionally, in a November 2012 letter, the AOJ requested that the Veteran identify any private healthcare provider who treated him for his left ear hearing loss from May 2007 to the present; however, he did not respond.  Therefore, VA has satisfied its duty to assist in this regard.

Additionally, the Veteran was afforded VA examinations in September 2008, and, in compliance with the Board's November 2012 remand, again in January 2013.  Neither the Veteran nor his representative has alleged that such examinations are inadequate for rating his left ear hearing loss.  Furthermore, the Board finds that the examinations are adequate as they include an interview with the Veteran, a review of the record, and a full audiologic examination, addressing the relevant rating criteria.  

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.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In this regard, the Board finds that both VA examiners addressed the functional effects resulting from the Veteran's bilateral hearing loss.  Specifically, at the September 2008 VA examination, the examiner noted that the Veteran's hearing loss presented the greatest difficulty when interacting with his wife and granddaughter.  Additionally, at the January 2013 VA examination, the examiner noted that the Veteran reported that his hearing loss impacted the ordinary conditions of his daily life.  Specifically, the Veteran expressed difficulty understanding women and children.  Therefore, the Board finds that the VA examinations of record fully describe the functional effects caused by the Veteran's left ear hearing disability in accordance with Martinak, supra.  As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary.

As indicated in the Introduction, the Board remanded this case in November 2012 in order to obtain outstanding VA treatment records, allow the Veteran an opportunity to identify any private healthcare provider who treated him for his left ear hearing loss, and afford him a VA examination so as to determine the current nature and severity of such service-connected disability.  As indicated previously, VA treatment records dated through January 2013 are associated with the claims file, the Veteran was invited to identify any private treatment records in a November 2012 letter, and he was afforded a VA examination in January 2013.  Therefore, the Board finds that the AOJ has substantially complied with the November 2012 remand directives such that no further action is necessary in this regard.  See D'Aries, supra.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

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 for that rating. Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's service-connected left ear hearing loss is currently assigned a noncompensable rating under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, effective June 1, 1977, as granted in a December 1877 rating decision.  The Veteran did not enter a notice of disagreement as to the propriety of the initially assigned rating, and no new and material evidence relevant to such claim was received within one year of the issuance of the rating decision.  38 C.F.R. § 3.156(b).  Thereafter, VA received the Veteran's claim for an increased rating for such disability in March 2008.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation.  Therefore, he alleges that he is entitled to a compensable rating for such disability. 

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined 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 rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is 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, 349 (1992). 

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. 
§ 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.

The Board initially notes that the Veteran is only service-connected for left ear hearing loss.  Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  As such, for the entire appeal period, the Veteran's nonservice-connected right ear is assigned Level I hearing.

VA treatment records dated during the course of the appeal note the Veteran's treatment for service-connected left ear hearing loss.  At the September 2008 VA examination, the Veteran was informed of the benefits of hearing aids, and told the examiner he would think about it and contact the clinic if he desired them.  He later reported that he was issued hearing aids by VA.  See May 2010 statement.

At the September 2008 VA examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



AVG.
1000
2000
3000
4000
LEFT
28
5
15
35
55

Speech discrimination was noted to be 92 percent in the left ear.  The examiner diagnosed mild to moderate high frequency sensorineural hearing loss.  There is no exceptional pattern of hearing loss shown.  These audiometry test results equate to Level I hearing in the left ear using Table VI. 38 C.F.R. §§ 4.85, 4.86(a).  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the left ear and Level I hearing in the nonservice-connected right ear results in a noncompensable rating.  38 C.F.R. § 4.85.

At the January 2013 VA examination, pure tone thresholds, in decibels, were as follows: 




HERTZ



AVG.
1000
2000
3000
4000
LEFT
32.5
5
20
45
60

Speech discrimination was noted to be 96 percent in the left ear.  The examiner diagnosed sensorineural hearing loss in the left ear.  There is no exceptional pattern of hearing loss shown.  As such, these audiometry test results equate to Level I hearing in the left ear using Table VI. 38 C.F.R. §§ 4.85, 4.86(a).  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the left ear and Level I hearing in the nonservice-connected right ear results in a noncompensable rating.  38 C.F.R. § 4.85. 

Therefore, the Board finds that, for the entire appeal period, the Veteran's nonservice-connected right ear is assigned Level I hearing, and, as he has no worse than Level I hearing in the left ear, he is not entitled to a compensable rating for his left ear hearing loss.

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding women and children, is not competent to report that his hearing acuity is of sufficient severity to warrant a 10 percent or greater evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).

Despite the foregoing, the Board acknowledges the Veteran's reports of the difficulty he has in understanding women and children.  Even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a compensable evaluation are not met.  See Lendenmann, supra (assignment of 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).  

The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected left ear hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted. 

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected left ear hearing loss with the established criteria found in the rating schedule.  While the Veteran has described the functional impairment he experiences as a result of his left ear hearing loss, to include difficulty understanding women and children, the Board finds that the Veteran's left hearing loss symptomatology is fully addressed by the rating criteria under which his disability is rated.  Specifically, the rating criteria contemplates the difficulty the Veteran has hearing in all situations.  There are no additional symptoms of his left ear hearing loss that are not addressed by the rating schedule.  Throughout the pendency of the appeal, the Veteran's numeric designation assigned after each audiometric evaluation consistently demonstrates no more than Level I hearing impairment.  The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability.  The rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, the record does not show either an express or implied TDIU claim in connection with the Veteran's service-connected left ear hearing loss.  To the contrary, the Veteran reported that he quit his job over personnel issues.  See April 2008 VA treatment note.  Moreover, to the extent that the Veteran's left ear hearing loss may interfere with his employability, such interference is addressed by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary.

The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a compensable rating for his left ear hearing loss.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.  

 
ORDER

A compensable rating for left ear hearing loss is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs