Citation Nr: 1311030 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 12-30 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating higher than 10 percent for bilateral hearing loss. ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran had active military service from December 1944 to August 1946 and from October 1948 to August 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating for the Veteran's bilateral hearing loss from 0 percent, i.e., noncompensable, to 10 percent retroactively effective from May 25, 2010, the date of receipt of his claim for a higher rating for this disability. He wants an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a service-connected disability, absent express indication to the contrary.). The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The results of audiological evaluations indicate the Veteran has no worse than level IV hearing impairment in his right ear and level IV hearing impairment in his left ear. CONCLUSION OF LAW The criteria are not met for a rating higher than 10 percent for bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a complete or substantially complete application for benefits, an enhanced duty on the part of VA to notify the claimant of the information and evidence not of record needed to substantiate the claim, including apprising him of what evidence will be obtained by whom, him or VA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Board finds that all notification needed to make a fair decision concerning this claim on appeal has been provided. In a July 2010 notice letter, the RO apprised the Veteran of the information and evidence needed to substantiate his claim for a higher rating for his bilateral hearing loss. He was told that the evidence must show this disability has increased in severity, meaning gotten worse. The letter provided him with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) clarified VA's notice obligations in increased-rating claims. But on appeal the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) vacated the lower Court's holding, indicating "generic" VCAA notice is all that is required, so VA does not have to notify a Veteran of alternative diagnostic codes (DCs) or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board also finds that the July 2010 notice letter satisfies the statutory and regulatory requirement that VA notify him of the evidence that must be obtained by him versus the evidence VA will obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified him that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked that he submit medical evidence, opinions, statements, and treatment records regarding his hearing loss. Consequently, a remand for further notification of how to substantiate this claim is unnecessary. Moreover, the RO provided that notice before initially adjudicating his claim in the June 2011 decision at issue in this appeal, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). Indeed, even if the RO had not provided notice prior to initially adjudicating the claim, or if provided notice but it was inadequate or incomplete, VA would only need to provided all necessary notice and then readjudicate the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), to rectify or "cure" the timing defect in the provision of the notice and preserve, rather than frustrate, its intended purpose in that the Veteran still would have been provided ample opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even if shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. VA also has a duty to assist the Veteran in the development of this claim. This duty includes assisting him in the procurement of service treatment records (STRs) and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional action is needed to comply with this duty to assist him with this claim. His STRs have been obtained and associated with the claims file for consideration, as have post-service evaluation and treatment records from the local VA Medical Center (VAMC) in Columbia, South Carolina. Additionally, in August 2010 and October 2012, he was provided VA examinations in connection with this claim, the reports of which are of record. These examination reports contain sufficient evidence by which to evaluate his bilateral hearing loss in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Significantly, he has not alleged that there are any outstanding medical records probative of his claim that need to be obtained, and the most recent assessment of his hearing loss by way of the VA compensation examination was rather recently in October 2012. There is no suggestion his hearing loss has worsened since that most recent evaluation, hence, no reason to again have him reexamined. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, VA has properly assisted him in developing and obtaining all relevant evidence concerning his claim. II. Analysis The Veteran asserts that his service-connected bilateral hearing loss is more disabling than currently rated, entitling him to an evaluation higher than 10 percent. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). His entire medical history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established, VA must address the evidence concerning the state of the disability from one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Court has held that consideration of the appropriateness of a "staged" rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). This would compensate him for any variance in the severity of his disability since one year prior to the filing of his claim for increase. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). He filed this claim for increase in May 2010, and his service-connected bilateral hearing loss has been evaluated as 10-percent disabling effectively since the receipt of his claim on May 25, 2010, so the relevant temporal focus is since May 2009. The rating assigned for his hearing loss is determined by mechanically, so nondiscretionarily, applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I for essentially normal hearing acuity to XI for profound deafness. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85 (Diagnostic Code 6100) (2012). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2012). Also when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In light of the audiological examination results of record, however, these provisions do not apply in the Veteran's case. In August 2010, the Veteran was provided a VA audiological examination in response to his May 2010 claim for a higher rating for his bilateral hearing loss. The examiner diagnosed the Veteran with mild-to-severe sensorineural bilateral hearing loss. The examination results documented a puretone threshold average of 58.75 decibels in the right ear and 63.75 decibels in the left ear. The Maryland CNC speech recognition scores were 80 percent in the right ear and 88 percent in the left ear. Based on those results with the utilization of Table VI, he had level IV hearing impairment in his right ear and level III hearing impairment in his left ear. Applying these results to Table VII, a 10 percent disability evaluation is warranted for his bilateral hearing loss based on those August 2010 audiological examination results. See 38 C.F.R. § 4.85 (Diagnostic Code 6100). This is the reason the RO increased the rating for his bilateral hearing loss from 0 to 10 percent in the June 2011 decision at issue. There is no indication he is entitled to an even greater rating, however. He more recently had another VA audiological examination in October 2012 to reassess the severity of his bilateral hearing loss, especially since in the interim it had been more than 2 years since his prior examination for compensation purposes. 38 C.F.R. § 3.327(a); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the Court held that, when a Veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). As such, in October 2012, he underwent another VA audiological evaluation for his service-connected bilateral hearing loss. A diagnosis of bilateral sensorineural hearing loss was again provided at the conclusion of this most recent evaluation. Examination results documented a puretone threshold average of 58.75 decibels for the right ear and 70 decibels for the left ear. The Maryland CNC speech recognition scores were 80 percent for the right ear and 76 percent for the left ear. Based on these results with the utilization of Table VI, he has level IV hearing impairment in his right ear and level IV hearing impairment in his left ear. Applying these results to Table VII, a 10 percent disability evaluation is still warranted for his bilateral hearing loss based on this October 2012 VA examination. Given the puretone threshold averages and speech recognition scores, his hearing impairment appeared to have worsened slightly since his prior VA examination. However, the rating criteria simply do not call for a higher disability evaluation for level IV hearing impairment in one ear and level IV hearing impairment in the other ear, even acknowledging this worsening of his hearing loss. See 38 C.F.R. § 4.85 (Diagnostic Code 6100). His hearing loss still has not progressed to the point that he is entitled to a rating higher than 10 percent. Also during the pendency of this appeal, he received treatment for his hearing loss at the local VAMC in Columbia, primarily for the fitting of hearing aids. But these records do not show that any additional hearing tests were performed; and no additional evidence, aside from what was specifically discussed above, is of recording suggesting his puretone thresholds meet the criteria for a rating higher than 10 percent. Thus, in consideration of the objective audiometric examination results that have been made a part of the record from the time period one year before the claim for an increase was filed, he experiences no more than 10-percent disabling bilateral hearing loss. The Board has considered his submitted statements in which he contends that an even higher evaluation is warranted. Despite the seemingly credible statements, the Board is bound by the regulations requiring a mechanical application of the rating criteria. Therefore, a rating of 10 percent is appropriate and a higher evaluation is not warranted at any time during the claim process. This determination is based upon consideration of applicable rating provisions. Both VA examination reports describe the effects of his hearing impairment on his occupational functioning and day-to-day activities. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). It was noted by the examiners that his bilateral hearing loss interferes with his driving, including in the sense that he has to concentrate more while driving. It was also reported that his hearing loss affects his ability to work due to hearing difficulty in background noise. But these effects do not take his case outside the norm as to warrant the assignment of any higher evaluation, including on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that his disability picture is not contemplated by these criteria in the rating schedule, referral for a determination of whether his disability picture requires the assignment of an extra-schedular rating is unwarranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For these reasons and bases, the Board finds that his claim for a rating higher than 10 percent for his bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for a rating higher than 10 percent for the bilateral hearing loss is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs