Citation Nr: 1312099 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 08-25 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1955 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2010, the Veteran and his wife testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The claim was remanded in December 2010 to obtain additional treatment records and to afford the Veteran a new VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). FINDING OF FACT Audiometric testing done for VA compensation purposes reveals no worse than Level I hearing acuity in the Veteran's right ear and Level III hearing acuity in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.85 Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for bilateral hearing loss arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, January 2008 and July 2008 letters informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in February 2008 and January 2011. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal, but did not note the specific criteria necessary to substantiate the increased rating claim or suggest the submission of any additional evidence. This was not necessary, however, because the Veteran volunteered his treatment history and current symptoms, thus fully describing the nature and severity of his bilateral hearing loss. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. 38 C.F.R. § 4.7. The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's bilateral hearing loss as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the puretone audiometry test. See 38 C.F.R. § 4.85. The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. "Puretone threshold average,'' as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz , divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII. For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. An October 2007 VA treatment record shows that the Veteran had average pure tone hearing loss of 45 decibels in the right ear and 53 decibels in the left ear. Speech recognition scores were 92 percent in the right ear and 94 percent in the left ear. The record does not indicate that the speech recognition scores used the Maryland CNC word lists. An exceptional pattern of hearing loss was not shown. For the sake of argument, if the speech recognition scores utilized the Maryland CNC word test, then pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score also received a numeric designation of Level I. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. The average pure tone hearing loss on authorized audiological evaluation in February 2008 was 46 decibels in the right ear and 54 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 96 percent in the right ear and 88 percent in the left ear. An exceptional pattern of hearing loss was not shown. The Veteran reported difficulty hearing the television and most conversations, especially if he was not looking at the speaker. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level II. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. In his August 2008 substantive appeal, the Veteran reported having difficulty hearing people speak, especially if they were not facing him. He indicated that he had to listen to the television with headphones so as not to disturb others. At his November 2010 hearing, the Veteran testified that he could not hear the television or his family members. November 2010 Hearing Transcript (T.) at 3. His wife testified that he could not hear the telephone ring, even if it was right beside him. Id. at 4. The average pure tone hearing loss on authorized audiological evaluation in January 2011 was 54 decibels in the right ear and 61 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 96 percent in the right ear and 88 percent in the left ear. An exceptional pattern of hearing loss was not shown. The examiner opined that the Veteran's bilateral hearing loss had significant effects on his occupation due to hearing difficulty. It had no effect on his usual daily activities. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level III. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. Here, the Veteran has been awarded a noncompensable rating throughout the pendency of this appeal. For the reasons set forth above, the evidence does not show that he is entitled to an initial compensable rating for bilateral hearing loss at any time since the award of service connection based on the standard rating criteria. 38 C.F.R. § 4.85, DC 6100. Therefore, his initial rating claim is denied. The above determination is based upon consideration of applicable rating provisions. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Veteran reported functional impairment in that he had difficulty hearing the television and conversations at the February 2008 examination. Additionally, in his August 2008 substantive appeal, the Veteran discussed reporting the functional effects of his bilateral hearing loss disability. Furthermore, the January 2011 examiner opined that the Veteran's bilateral hearing loss affected his occupational activities due to hearing difficulty, but it had no effect on his usual daily activities. As the examinations collectively described the functional effects of the Veteran's bilateral hearing loss disability, as the Veteran reported his functional effects in August 2008, and as the Veteran has not demonstrated any prejudice caused by a deficiency in either examination, the Board reiterates that the evidence does not support a finding of a compensable rating at any time since the award of service connection. The evidence does not show that the Veteran's bilateral hearing loss has resulted in marked interference with employment or activities of daily life. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a compensable schedular rating at any time since the award of service connection. The Board finds, therefore, that the evidence of record does not support the criteria required for an initial compensable schedular rating at any time since the award of service connection. The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate that the bilateral hearing loss has resulted in frequent periods of hospitalization or in marked interference with employment. Id. In this regard, the Board notes that it is undisputed that the Veteran's bilateral hearing loss has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above. 38 C.F.R. § 4.10. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Although the Veteran has submitted evidence of a medical disability, and a made claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected bilateral hearing loss. The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has not, therefore, been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs