Citation Nr: 1318270 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-36 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from April 1966 to April 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico. Jurisdiction was subsequently transferred to the RO in Nashville, Tennessee. Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher evaluation includes a claim for a total rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. The Veteran did not specifically indicate that he is currently unemployed or completely unemployable as a result of his service-connected bilateral hearing loss. As such, the Board finds that Rice is not applicable to the current appeal. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, any further discussion of an issue of entitlement to TDIU is not necessary. See Rice, supra. A review of the Virtual VA paperless claims processing system shows additional VA outpatient treatment records through March 2013 that have been considered. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is manifested by numeric designations of impairment of not greater than Level VI in the right ear and Level I in the left ear. 2. The Veteran experiences difficulty hearing conversation in high background noise, but the hearing disability does not impair safe performance of household chores, daily personal activities, and operation of an automobile. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 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 must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran appealed the initially assigned rating for his service-connected bilateral hearing loss. Notice is not required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his bilateral hearing loss was granted and an initial rating was assigned in the February 2009 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records have been associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran underwent VA audiometric examinations in January 2009 and July 2011and the results have been included in the claims file. The examinations involved an accurate summary of the history, a thorough clinical examination in compliance with regulations and protocols, and assessments of the imposed functional limitations. Therefore, the Board finds that the examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board finds there has been substantial compliance with its May 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The RO/AMC requested any additional evidence from the Veteran, obtained VA treatment records, and a VA examination as directed. Following the examinations, the Appeals Management Center (AMC) later issued a supplemental statement of the case in July 2011 with an appropriate opportunity to respond. The Board finds that the AMC substantially complied with the mandates of its remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record. The Veteran served as a U.S. Army artilleryman with combat service in the Republic of Vietnam from October 1966 to September 1967. He contends that his bilateral hearing loss is more severe than is contemplated by initial noncompensable rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Consideration must be given to assigning "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination (Maryland CNC) and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. These averages are entered into a table of the rating schedule to determine the auditory acuity level of each ear, and these auditory acuity levels are entered into another table of the rating schedule to determine the percentage disability rating. 38 C.F.R. § 4.85. The alternative methods of rating exceptional patterns of hearing impairment set forth in 38 C.F.R. § 4.86. When the puretone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the Roman numeral designation for hearing impairment will be taken 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, and each ear will be evaluated separately. 38 C.F.R. § 4.86 (b). Examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test and a puretone audiometric test. 38 C.F.R. § 4.85. Audiologists must describe the effects on occupational functioning and daily activities so that it can be determined if an extra-schedular evaluation may be assigned. Unlike the rating schedule for hearing loss, the extra-schedular provisions do not rely exclusively on objective test results to determine if referral is warranted. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Service personnel records confirm the Veteran's military occupation and combat duties which are consistent with exposure to high noise levels from heavy weapons. In VA examinations in January 2009 and July 2011 and in the most recent VA outpatient treatment report in March 2013, the Veteran reported that he worked after service in construction using personal hear protection and retired in 2006. He currently lives alone with limited social interactions except for a small church congregation. He is able to drive an automobile and manage his own household affairs. In November 2004, a private audiologist examined the Veteran and performed audiometric tests. Puretone thresholds at 1000, 2000, 3000, and 4000 Hz were 15, 45, 65, and 70 decibels respectively in the right ear and 15, 20, 55, and 60 decibels respectively in the left ear. The threshold averages were 48.75 decibels on the right and 37.5 decibels on the left. Speech discrimination scores were 84 percent on the right and 88 percent on the left. An organic ear examination was normal. The audiologist diagnosed normal sloping to moderately severe sensorineural hearing loss bilaterally. The audiologist did not note the Veteran's subjective symptoms but concluded that amplification aids were not warranted. In January 2009, a VA audiologist noted a review of the claims file, accurately summarized the Veteran reports of noise exposure in and after service and his current difficulties hearing conversation in high background noise environments. The Veteran reported experiencing tinnitus three to four times per week lasting 10 to 15 minutes. The Veteran also reported difficulty hearing a television and communicating on the telephone. Puretone thresholds at 1000, 2000, 3000, and 4000 Hz were 25, 55, 70, and 65 decibels respectively in the right ear and 25, 30, 65, and 60 decibels respectively in the left ear. The threshold averages were 53.75 decibels on the right and 45.0 decibels on the left. Speech discrimination scores were 90 percent on the right and 92 percent on the left. A Stenger test was negative at 2000 Hz. (This test is to determine if the subject is feigning hearing loss. Dorland's Illustrated Medical Dictionary, 1883 (30th Ed., 2003.) An organic ear examination was normal. The audiologist diagnosed normal moderately severe sensorineural hearing loss bilaterally and tinnitus In February 2009, the RO in part granted service connection and a 10 percent rating for tinnitus and service connection and a noncompensable rating for bilateral hearing loss. In March 2009, the Veteran expressed disagreement with the initial rating. In a September 2009 substantive appeal, the Veteran noted that his hearing acuity was poorer in places with competing sounds than when tested in a controlled environment. He noted that his hearing acuity had been getting worse over the last few years. In May 2011, the Board remanded the claim to obtain a current examination and to provide the Veteran an opportunity to submit additional evidence. In July 2011, another VA audiologist noted a review of the claims file and accurately summarized the Veteran's history of noise exposure. The audiologist did not note any additional functional deficits reported by the Veteran. Puretone thresholds at 1000, 2000, 3000, and 4000 Hz were 30, 75, 75, and 70 decibels respectively in the right ear and 25, 45, 65, and 70 decibels respectively in the left ear. The threshold averages were 62.0 decibels on the right and 51.0 decibels on the left. Speech discrimination scores were 92 percent on the right and 94 percent on the left. Although the audiologist did not repeat a Stenger test, the audiologist did not indicate that the Veteran was feigning hearing loss. The audiologist diagnosed sensorineural hearing loss bilaterally and concluded that the hearing loss did not preclude daily activities. The audiologist noted that the Veteran would have difficulty in occupations that required work in high background noise, use of non-face to face communications, or attention to high pitched sounds such as medical equipment alarms. The audiometric test results and application of the data to the applicable rating tables are summarized below. Examination Date Source Ear Puretone Threshold Average (decibels) Speech Discrimination (percent) Table VI/VIa* Result Table VII Result 11/2004 Private R L 48.75 37.5 84 88 II II zero 1/2009 VA R L 53.75 45.0 90 92 II I zero 7/2011 VA R L 62.5 51.25 92 94 VI* I zero The Board concludes that an initial or staged compensable rating for bilateral hearing loss is not warranted at any time during the period covered by this appeal. As shown above, the rating method results in a noncompensable rating at the time of each of the examinations of record including the use of the alternate method in the case of the right ear in the July 2011 test. Although the Veteran has difficulty hearing conversations in high background noise and requires a higher volume on personal devices, his hearing loss does not preclude daily activities such as driving an automobile, attending to household duties, or the use of the telephone or entertainment devices. The July 2011 audiologist concluded that hearing limitations would only impair work in certain circumstances but not in the Veteran's previous construction occupation. The Board concludes that the rating criteria adequately contemplate the Veteran's symptoms because higher ratings are available for more severe hearing loss and because the Veteran's subjective symptoms are not so unusual as to make the test criteria inapplicable. Therefore, consideration for an extra-schedular rating is not warranted. 38 C.F.R. § 3.321. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs