Citation Nr: 1310641 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 08-27 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the military from July 1967 to September 1969. His military personnel records, including his DD Form 214, indicate he was in the Marines and served on the landmass of Vietnam during the Vietnam War. He is a decorated combat Veteran, as evidenced by his receipt of the Combat Action Ribbon. He also received the Vietnam Service Medal and Vietnam Campaign Medal. This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In pertinent part, an August 2006 rating decision granted the Veteran's claim for service connection for bilateral hearing loss and assigned an initial noncompensable (i.e., 0 percent) rating retroactively effective from January 27, 2006, the date of receipt of his claim. He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award to compensate him for times when the disability may have been more severe than at others). In April 2010, as support for this and other claims he also had appealed, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The Board subsequently, in July 2010, issued a decision granting the Veteran's claim for service connection for tinnitus (ringing in his ears) since it was as likely as not attributable to the same cause as his already service-connected bilateral hearing loss, namely, repeated exposure to excessively loud noise during his military service. The RO effectuated that grant in an August 2010 decision, assigning a 10 percent rating for the tinnitus retroactively effective from the receipt of this claim on January 27, 2006. This is the highest possible schedular rating for tinnitus. See 38 C.F.R. § 4.87, DC 6260, and Smith v. Nicholson, 19 Vet. App. 63 (2005). Perhaps that is the reason he did not, in response, separately appeal that initial rating or effective date assigned for his tinnitus, hence, that claim has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability and effective date.) Also in that July 2010 decision, the Board instead remanded this claim for a higher initial rating for the bilateral hearing loss and the remaining others, as well, for further development and consideration. The additional development of this claim for a higher initial rating for the bilateral hearing loss especially included having the Veteran undergo another VA compensation examination reassessing the severity of this disability, which also was to determine the effect of this disability on his occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). He since has had this additional VA audiological examination in October 2010, and the findings permit the Board to address all relevant considerations regarding the severity of this disability. Moreover, the Board's prior July 2010 remand observed that he had filed a timely NOD regarding the additional issues of his entitlement to a higher rating for his posttraumatic stress disorder (PTSD) and to service connection for dermatitis with resulting alopecia. The Board therefore directed the RO or Appeals Management Center (AMC) to provide him with a Statement of the Case (SOC) concerning these claims, after receipt of which he would have opportunity to complete the steps necessary to perfect his appeal of these other claims by also filing a timely substantive appeal (VA Form 9 or equivalent statement). See Manlincon v. West, 12 Vet. App. 238 (1999). The RO/AMC duly completed this action. However, after receiving the SOC concerning these other claims, he did not then perfect his appeal of these claims by in response filing a timely Substantive Appeal (VA Form 9 or equivalent). See 38 C.F.R. §§ 20.200, 20.202, etc. (2012). Therefore, these other claims are not before the Board, only instead the claim for an initial compensable rating for his bilateral hearing loss. FINDING OF FACT The Veteran's bilateral (left and right ear) hearing loss has been manifested by no worse than numerical designation of Level I acuity in each ear. CONCLUSION OF LAW The criteria are not met for an initial compensable rating for the bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Veteran with this Claim The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR § 3.159(b)(1) (2012). In regard to this claim on appeal for higher evaluation for service-connected bilateral hearing loss, when, as here, the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection for this disability, and this claim since has been granted and he has appealed a "downstream" issue such as the initial disability rating assigned, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So, in this situation, VA is not required to provide him additional VCAA notice concerning the downstream disability rating and effective date elements of his claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. And the RO provided him this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning a higher initial rating for this disability. He therefore has received all required notice concerning this claim. The RO/AMC furthermore has taken appropriate action to comply with the duty to assist him with this increased-rating claim by obtaining records of his VA outpatient treatment and arranging for him to undergo VA Compensation and Pension examinations assessing and reassessing the severity of this disability. See 38 C.F.R. §4.1 (for purpose of application of the Rating Schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In furtherance of this claim, he has provided personal statements regarding the extent of his hearing loss condition. He testified during a Travel Board hearing about how this disability impacts his life and employment. There is no indication of any other evidence or information relevant to this claim that has not been obtained. The record as it stands includes sufficient competent evidence to decide this claim. Thus, no further assistance with this claim is required. In sum, the record reflects that the facts pertinent to this claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or implementing regulations. That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide him regarding what further evidence he should submit to substantiate this claim. Conway v. Principi, 353 F.3d. 1369 (Fed. Cir. 2004). Accordingly, the Board is proceeding with the adjudication of this claim. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule) that is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. When, as here, the Veteran appeals the rating initially assigned for the disability, after already having established his entitlement to service connection for it, VA must consider the propriety of a "staged" rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119, 125-26 (1999), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) recognized a distinction between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disability. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - a practice known as a "staged" rating. See Fenderson, supra, at 125-26. The Court since has extended this practice, however, even to claims that do not involve initial ratings, but also established ratings, so even in the more traditional increased-rating context. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable schedular rating criteria for hearing loss, disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent, so noncompensable, to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second (Hertz). The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The Veteran initially underwent VA Compensation and Pension examination by an audiologist in May 2006. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 45 60 55 LEFT 15 20 50 60 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The diagnosis given was of mostly moderate to moderately severe sensorineural hearing loss in both ears, starting at 2000 Hertz. Thereafter, in its July 2010 decision and remand, the Board observed that the then existing record did not provide a sufficiently recent depiction of the Veteran's hearing loss disability for evaluative purposes, given that the last relevant VA examination was from more than four years earlier, in May 2006. The Board further observed that there since had been an update to the legal requirements for what is required of VA hearing loss examinations, namely, when considering the Court's decision in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). See also Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007). The Martinak decision held, in pertinent part, that in view of potential entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1), a VA audiological examiner should describe the effect of hearing loss on occupational functioning and daily activities. Id. Thus, the Board remanded this claim for a higher rating for the bilateral hearing loss for a more comprehensive and updated VA examination. In compliance with the Board's remand instructions, the Veteran underwent an October 2010 VA re-examination. Audiological evaluation revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 50 60 65 LEFT 15 20 50 65 65 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The diagnosis was bilateral sensorineural hearing loss, normal to moderately severe. The VA examiner further commented that the effect of hearing loss upon occupation consisted of "significant effects." The specific impact on occupational activities was noted as "hearing difficulty." In view of the preceding clinical findings and duly applying the VA rating criteria, the claim must be denied. The audiological findings obtained pursuant to VA examination do not substantiate the award of a compensable disability evaluation at any point since the January 27, 2006 effective date of service connection for bilateral hearing loss. To begin with, the May 2006 VA examination establishes no worse than Level I right ear and Level I left ear hearing loss, pursuant to 38 C.F.R. § 4.85, Table VI. When these two designations are combined under Table VII, the rating table for hearing impairment, the result is a noncompensable disability evaluation. The October 2010 VA examination findings result in the same disposition, with both right and left ears registering Level I designations, which when combined correspond to a noncompensable evaluation. While the Board realizes even this most recent examination is now more than two years old, it nonetheless can be said to provide a sufficiently recent depiction of the Veteran's hearing loss, especially given that he is not shown otherwise to have had any worsening of hearing acuity since. The mere passage of time since an otherwise adequate VA examination does not obligate VA to schedule yet another examination simply as a matter of course. See Palczewski v. Nicholson, 21 Vet. App.174 (2007); VAOPGCPREC 11-95 (April 7, 1995).. Moreover, the audiometric results that have been obtained throughout do not even fall close to the range that would otherwise warrant a compensable evaluation. The bilateral hearing loss demonstrated through the VA examinations also does not demonstrate an "exceptional pattern" of hearing impairment, such that the respective Level designations of hearing loss could be made based entirely on audiometric test findings, without inclusion of speech recognition scores. See 38 C.F.R. § 4.86 (outlining circumstances under which VA will adjudicate claims involving exceptional patterns of hearing impairment). Consequently, the audiometric frequency readings obtained do not permit the assignment of a compensable evaluation for the service-connected bilateral hearing loss. The application of the rating criteria based on audiometric testing and speech discrimination scores is the only prescribed means of hearing loss evaluation under the VA Rating Schedule. The Board is bound to apply the provisions of the rating criteria. See 38 U.S.C.A. § 7104(c). In summary, upon application of the rating criteria, a compensable evaluation for the bilateral hearing loss is not substantiated. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations also have been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, 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. Here, though, the Veteran's bilateral hearing loss does not present such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the applicable rating criteria are thorough and he does not manifest nor describe symptomatology outside of these criteria. See again Martinak, 21 Vet. App. at 453-54 (determining that the procedure of audiometric testing in a sound-controlled room, contrary to the claimant's assertions, was sufficient for rating purposes). In his hearing testimony he described some hearing-related difficulties in his prior employment, but this primarily involved the underlying condition of limitations in auditory acuity, without substantial additional or unusual symptomatology. Thus, the Board cannot conclude that his condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extra-schedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. To this effect, the most recent VA examination of October 2010 identified a "significant" impact of hearing loss upon occupational functioning, in the way of hearing difficulty. On initial review, there is nothing contained therein that suggests a profound limitation upon employability. Arguably, a more in-depth assessment could have been obtained by the VA examiner as to occupational impact than just "hearing difficulty," even given the minimalistic findings (for instance, a one-sentence pronouncement) that were required on that subject by the Court in the Martinak case. Regardless, the totality of the evidence of record in this case nonetheless weighs against any indication of marked impact on occupational functioning. As indicated in the report of a contemporaneous October 2010 VA psychiatric examination, the Veteran had just then recently quit his job as a sales associate at a hardware store entirely due to the severity of the symptoms, such as depression, associated with his PTSD, so not because of his hearing loss. There is indication that he has remained in a non-working status since. As a result, to the extent that service-connected disability has a substantial impact upon his occupational capacity, this appears to be due to his psychiatric disability and not his bilateral hearing loss. In addition to the absence of marked impact upon occupational functioning from bilateral hearing loss, this service-connected disability also has not necessitated frequent periods of hospitalization or otherwise rendered impracticable the application of the regular schedular standards. The evaluation and treatment he has received for his bilateral hearing loss has been entirely on an outpatient basis, not as an inpatient, certainly not frequent inpatient. In the absence of evidence of such factors, the Board is not required to remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying this claim for an initial compensable rating for the bilateral hearing loss. This determination takes into full account the potential availability of any "staged" rating based upon incremental increases in severity of this service-connected disability during the pendency of this claim under review. The preponderance of the evidence is against this claim, however, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim for an initial compensable rating for the bilateral hearing loss is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs