Citation Nr: 1318409	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-50 341	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Entitlement to an initial compensable disability rating for right ear hearing loss.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel




INTRODUCTION

The Veteran served on active duty from June 1967 to June 1970.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO granted service connection for right ear hearing loss and assigned a noncompensable evaluation effective from March 13, 2008.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The Board notes that the Veteran provided a written submission to the agency of original jurisdiction (AOJ) in February 2010 after the issuance of a supplemental statement of the case (SSOC).  There was also evidence submitted by or on behalf of the Veteran directly to the Board in July 2010 (a copy of February 2010 letter) and in February 2013, to include two written submissions from the Veteran in support of his claim.  The Veteran and his representative have not submitted a waiver of the RO's initial consideration of the evidence.  However, the additional evidence shows is either duplicative (argument essentially duplicative of the existing evidence of record) and/or not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue).  Thus, a remand for review of these records by the RO in the first instance, including issuance of an SSOC, is not necessary.  38 C.F.R. §§ 19.31, 19.37, 20.1304(c).

The Board also notes that two issues have been raised by the record, but have not been addressed by the AOJ.  In this regard, the April 2009 rating decision also denied service connection for left ear hearing loss, but indicated that the Veteran's complete service treatment records were unavailable for review.  It was noted that the decision regarding left ear hearing loss would be reconsidered if the complete records were located at a later date.  A review of the file shows that a set of service treatment records, to include both entrance and separation examinations, has been associated with the claims file.  In light of these circumstances, the issue of entitlement to service connection for left ear hearing loss is referred to the RO for appropriate action.

In addition, in a February 2013 written submission, the Veteran asserted that he was entitled to a 50 percent rating for tinnitus.  However, the issue of entitlement to an increased evaluation for tinnitus is not currently before the Board.  Therefore, that issue is also referred to the RO for appropriate action.


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran manifested Level I hearing in his right ear.  

2.  The Veteran is not currently service-connected for left ear hearing loss.


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for right ear hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.383, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Nevertheless, the Veteran in this case is challenging the initial rating assigned following the grant of service connection for right ear hearing loss.  In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  See also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial rating for right ear hearing loss.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's available service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  He has not identified any available, outstanding records that are relevant to the claim being decided herein.  Moreover, the record includes written statements provided by the Veteran and his representative.

The Veteran was also afforded a VA examination in April 2009 in connection with his claim.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination in this case is adequate, as it is predicated on a review of the Veteran's medical history as well as on an examination, and fully addresses the rating criteria that are relevant to rating the disability in this case.

The Board does observe that the April 2009 VA examiner did not review the claims file; however, she did review the Veteran's own reported medical history and complaints, as well as his VA electronic medical records.  She also performed a physical examination that addressed all of the rating criteria.  Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455.  In this case, the April 2009 VA examiner indicated that the Veteran's right ear hearing loss did not have an effect on his usual daily activities or his occupations.  It was also noted that the Veteran was employed.  

Moreover, in Martinak, the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  There have been no allegations of any prejudice caused by a deficiency in the examination here.  Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion.

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95. 


Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4). 

VA has further assisted the Veteran throughout the course of this appeal by providing him with an SOC and an SSOC, which informed him of the laws and regulations relevant to his claim.  The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


Law and Analysis

The Veteran contends that he is entitled to a higher initial disability rating for his service-connected right ear hearing loss.

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; 38 C.F.R. § 4.1.  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.  38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, as in this case, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Separate ("staged") ratings may be assigned for separate periods of time based on the facts found.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Under the rating criteria, the method for rating hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hz, with an average puretone threshold obtained by dividing these thresholds by four.  38 C.F.R. § 4.85.

Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and puretone threshold average.  Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear.  38 C.F.R. § 4.85.

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383.  38 C.F.R. § 4.85(f).

There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss.  Exceptional hearing loss exists when the puretone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.  However, the Board notes that the audiological examination results of record show that the provisions of exceptional hearing loss are not applicable in this case, as he does not have such an expetional pattern.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for his right ear hearing loss.

The Veteran's service-connected right ear hearing loss is currently assigned a noncompensable disability rating effective from March 13, 2008.  Service connection has not been granted for his left ear hearing loss.  Thus, a Level I designation is used for the nonservice-connected left ear, unless the hearing impairment in the right ear is to a degree of 10 percent or more and the hearing impairment in the left ear meets the provisions for disabling hearing for VA purposes.  See 38 C.F.R. §§ 3.383 (special consideration for paired organs and extremities); 3.385.  As discussed below, the right ear hearing loss has not been shown to be at least 10 percent disabling on its own at any time during the appeal.  As such, the provisions of 38 C.F.R. § 3.383 are not for application in this case.

A February 2008 written submission from the Veteran's private physician, Dr. R.B. (initials used to protect privacy) shows that the Veteran was seen with a history of hearing loss.  Dr. R.B. indicated that the examination performed that day revealed hearing loss in the right ear; however, no test results were reported.

On the April 2009 VA audiological examination, the Veteran's puretone thresholds in decibels were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
35
50
75
46.25

His speech recognition was 98 percent in the right ear.  These audiometric findings equate to level I hearing in the right ear. See 38 C.F.R. § 4.85, Table VI.  His nonservice-connected left ear is accordingly designated level I hearing.  When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran's right ear hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. § 4.85. Moreover, the provisions of 38 C.F.R. § 4.86 are not applicable, as he did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz.

In July 2009, the Veteran underwent a private audiological examination at the Semoran Hearing Clinic.  The Board notes that speech recognition was not measured using the Maryland CNC test.  Instead, the examination report specifically indicates that the NU-6 word lists (live voice) were used for speech recognition testing.  Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes "must include a controlled speech discrimination test (Maryland CNC)."  Therefore, the July 2009 private audiological report is not adequate for rating purposes.  The Board notes that this is not a case in which clarification of the July 2009 private audiological examination report is required.  Rather, the report itself reflects that it did not comply with 38 C.F.R. § 4.85(a).  In addition, the Board notes that there was a relatively short amount of time between this test and the previous VA examination, and there is no evidence or contention that the Veteran's right ear hearing loss had changed.  Cf. Savage v. Shinseki, 24 Vet. App. 259 (2011).  Indeed, the puretone thresholds appear to be similar on both the April 2009 VA examination report and the July 2009 private audiological report.  Thus, it does not appear that there was any fluctuation or worsening.  

Based on the foregoing, the evidence shows that the Veteran is not entitled to a compensable evaluation for his right ear hearing loss, as he had no worse than Level I hearing in that ear.  The Board has considered the provisions of 38 C.F.R. § 3.383 to determine whether the Veteran's nonservice-connected left ear hearing loss may be considered for rating purposes.  However, as stated above, that provision is not applicable because the right ear is not at least 10 percent disabling on its own. 

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's right ear hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment.

The Board does acknowledge the Veteran's contention that his disability situation is unique because his right ear hearing loss is much more severe and disabling due to his left ear hearing loss.  The record clearly demonstrates that the Veteran has severe left ear hearing loss; however, service connection has not been established for that disability.  Moreover, the rating criteria specifically contemplate such a situation.  As noted above, the provisions of 38 C.F.R. § 3.383 give special consideration to cases in which only ear is service-connected, but the other ear does have hearing loss.  However, in this case, the Veteran's right ear hearing loss is not severe enough to warrant such consideration.  If he had compensable hearing loss in his right ear, his nonservice-connected left ear hearing loss would be used in the evaluation.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected right ear hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

ORDER

Entitlement to an initial compensable disability rating for right ear hearing loss is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs