Citation Nr: 1312827 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 07-38 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable disability rating prior to October 2, 2012, and in excess of 10 percent thereafter, for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In October 2011, the Board remanded the Veteran's claim of entitlement to a compensable initial evaluation to the Appeals Management Center (AMC) for further evidentiary development, including contacting the Veteran's private audiologists to determine whether they used the Maryland CNC word list in their speech recognition testing and providing their responses to a VA examiner to determine whether these private audiological examinations met VA criteria for audiometric testing. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC sent the three private audiologists a letter in October 2011 asking them to clarify what word list was used for their respective speech recognition testing. The AMC then provided their responses to a VA examiner in January 2012 for an opinion on whether these results could be used for rating purposes. Accordingly, all remand instructions issued by the Board in October 2011 were complied with. In August 2012, this matter was again remanded in order that the functional effects caused by the Veteran's bilateral hearing loss could be addressed in compliance with Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). An additional VA examination that complied with this request was afforded the Veteran in October 2012. In January 2013, the AMC increased the evaluation of the Veteran's bilateral hearing loss to 10 percent disabling effective October 2, 2012. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. FINDINGS OF FACT 1. Prior to October 2, 2012, the Veteran's service-connected bilateral hearing loss was manifested by no more than auditory acuity level I in the right ear and level IV in the left ear. 2. From and after October 2, 2012, the Veteran's service-connected bilateral hearing loss has been manifested by no more than auditory acuity level II in the right ear and level III in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating prior to October 2, 2012, and in excess of 10 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. 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, 444 F.3d at 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). In any case, the Veteran was sent a letter dated in October 2006 that provided information as to what evidence was required to substantiate the underlying service connection claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed on the merits. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support are also of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Additionally, the Veteran was provided VA examinations in connection with his claim, the reports of which are of record. Most recently, a VA examination was conducted in October 2012 pursuant to the Board's August 2012 remand. The examination reports contain sufficient evidence by which to evaluate the Veteran's bilateral hearing loss in the context of 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). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. 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 (West 2002); 38 C.F.R. § 4.1 (2012). 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 (2012). The benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's bilateral hearing loss. Also, in Fenderson, the Court discussed the concept of "staged ratings," finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning additional initial staged ratings for service-connected bilateral hearing loss. The Veteran's service-connected bilateral hearing loss is currently assigned a noncompensable rating under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012) prior to October 2, 2012, and evaluated as 10 percent disabling thereafter. 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 (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. In the instant case, as will be shown below, the Veteran has not demonstrated an exceptional pattern of hearing loss and therefore, 38 C.F.R. § 4.86 and Table VIA are not for application. At an October 2006 VA examination, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 55 55 50 LEFT 15 30 65 70 70 Pure tone thresholds for frequencies 1000 through 4000 Hertz averaged a 45 decibel loss in the right ear and a 58.75 decibel loss in the left ear. The audiologist indicated that the Veteran had 94 percent speech discrimination in the right ear and 76 percent speech discrimination in the left ear. These audiometry test results equate to level I hearing in the right ear and level IV hearing in the left ear, using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, level I hearing in the right ear and level IV hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran was also afforded a VA examination dated in October 2012 pursuant to the Board's August 2012 remand. At such evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 65 55 65 LEFT 20 35 75 75 90 Pure tone thresholds for frequencies 1000 through 4000 Hertz averaged a 52.5 decibel loss in the right ear and a 68.75 decibel loss in the left ear. The audiologist indicated that the Veteran had 90 percent speech discrimination in the right ear and 88 percent speech discrimination in the left ear. These audiometry test results equate to level II hearing in the right ear and level III hearing in the left ear, using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, level II hearing in the right ear and level III hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. The Board also notes that the Veteran's claims file contains three private audiologial examinations dated in May, August, and November 2007. However, a January 2012 review of these examination results by a VA physician indicated that the private examinations did not meet VA requirements for VA compensation examinations. Although speech recognition scores were provided in those examinations, the private examiners each indicated that the required Maryland CNC word list was not used. See Savage v. Shinseki, 24 Vet. App. 259 (2011). In any case, the puretone threshold findings in the private examination reports are not inconsistent with the result from the VA examinations and, if anything, show less severe hearing at most threshold levels. The Board finds that the requirements for higher evaluations for bilateral hearing loss are not met based on the demonstrated levels of hearing impairment, emphasizing that 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. See Lendenmann, 3 Vet. App. at 345. There is no medical evidence of record indicating that the Veteran experiences a higher level of hearing impairment. In fact, the evidence is not even reflective of a 10 percent rating that was awarded subsequent to the October 2012 VA examination. It appears that the AMC may have utilized Table VIA, which is not applicable. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his hearing loss, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Veteran's statements appear to be accurate as there are higher decibel thresholds shown at several Hertz levels. Nevertheless, based on the rating criteria, a higher rating is not warranted. The above determinations are based upon consideration of applicable rating provisions. The October 2012 VA examination report describes the effects of the Veteran's hearing impairment on his daily life. See Martinak, 21 Vet. App. at 455. It was noted by the examiner that the Veteran has problems hearing conversations at times, even when wearing his hearing aids, but the hearing loss would not prevent the Veteran from seeking and obtaining gainful employment. Such effects do not take the Veteran's case outside the norm as to warrant the referral of the case for the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for higher initial ratings for bilateral hearing loss. Therefore, the benefit-of-the-doubt doctrine is not applicable in the instant appeal, and his initial rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. ORDER An initial compensable disability rating prior to October 2, 2012, and in excess of 10 percent thereafter, for bilateral hearing loss is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs