Citation Nr: 1318710 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 12-25 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability evaluation for bilateral hearing loss prior to January 22, 2013, and to a disability evaluation in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from October 1956 to October 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The July 2010 rating decision granted service connection for bilateral hearing loss and assigned an initial noncompensable disability evaluation. In a May 2013 rating decision, the RO increased the Veteran's disability evaluation to 10 percent, effective January 22, 2013. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from October 21, 2005 to October 12, 2011 that are pertinent to the present appeal. In the June 2012 Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from October 21, 2005 to October 12, 2011 were reviewed prior to the adjudication of the claim. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. In January 2013 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. 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). FINDINGS OF FACT 1. Prior to January 22, 2013, the Veteran had Level III hearing loss in both ears. 2. Beginning on January 22, 2013, the Veteran has Level III hearing loss in his right ear and Level V hearing loss in his left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability evaluation for bilateral hearing loss prior to January 22, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.353, 3.385, 4.1-4.14, 4.85, 4.86 Diagnostic Code 6100 (2012). 2. The criteria for a disability evaluation in excess of 10 percent for bilateral hearing loss after January 22, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.353, 3.385, 4.1-4.14, 4.85, 4.86 Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. The Veteran originally received VCAA notice for his initial service connection claim in March 2010. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains reports of post-service medical treatment, and reports of VA examinations in May 2010 and January 2013. The Veteran's service treatment records (STRs) are not available and are presumed destroyed in the St. Louis fire in 1973. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the individual case. Littke v. Derwinski, 1 Vet. App. 90 (1990). "Full compliance with the [statutory duty to assist] also includes VA assistance in obtaining relevant records from private physicians when [the Veteran] has provided concrete data as to time, place, and identity." Olson v. Principi, 3 Vet. App. 480, 483 (1992). The January 2013 VA examiner did not review the Veteran's claims file. Later in January 2013, another examiner indicated that the claims file had been reviewed, and that reviewing the record did not change the outcome of the examination. The Court has held that a physician's review of the claims file is not the determinative factor in assigning probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). But the Court noted that a physician should have information regarding relevant case facts. The VA examination reports reflects that the examiner conducted appropriate audiological testing to determine the current severity of the Veteran's service-connected bilateral hearing loss. The examinations was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. This case was remanded in January 2013 so that the Veteran could provide information regarding any recent medical treatment and so he could undergo a VA examination. In January 2013, the RO sent the Veteran release forms for any private medical records that might have been outstanding. The Veteran did not reply. He underwent a VA examination in January 2013. The Board finds that the examination is adequate because the examiner specifically found that there was no impact on his ordinary conditions of daily life and his ability to work. To the extent that this explanation is insufficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Indeed, the Veteran has been represented throughout the course of the appeal, yet the documents submitted do not contain any such assertion. Id., at 455-456. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once a disability is established, levels of hearing loss are determined by considering the pure tone threshold average and speech discrimination percentage scores, resulting in a Roman numeral designation for hearing loss. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining the level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination" is used to determine a Roman numeral designation (I through XI) for hearing impairment in each ear based on consideration of speech discrimination as well as pure tone threshold averages, unless the examiner certifies that use of the speech discrimination test is not appropriate. In that case, table VIa, "Numeric Designation of Hearing Impairment Based Only on Pure tone Threshold Average" is used. Table VII, "Percentage Evaluation for Hearing Impairment" is then used to determine the percentage evaluation by combining the Roman numeral of each ear. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). If the Veteran has either of two exceptional pattern of hearings impairment, the Roman numeral value is determined using both Table VI and VIa. 38 C.F.R. § 4.86. This method is used if the Veteran's pure tone threshold at each of the four specified frequencies is 55 decibels or more, or if the Veteran's pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. These patterns do not apply in this case. The Board, as finder of fact, may interpret a graphical audiogram. In Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance. The record contains a December 2009 graphical audiogram from a VA audiologist. Transcribed into a chart, the Veteran's pure tone thresholds, in decibels, were as follows. HERTZ 500 1000 2000 3000 4000 RIGHT -- 30 65 75 85 LEFT -- 30 65 85 85 The average pure tone threshold was 64 in the right ear and 66 in the left ear. No speech audiometry testing was conducted. The VA audiologist did not certify that speech discrimination testing was not appropriate. Instead, the test was simply not conducted. Therefore, Table VIa is not applicable and this audiogram is not suitable for rating purposes. 38 C.F.R. §§ 3.383, 3.385, 4.85(b). In January 2010, a VA treatment record notes that the Veteran "evidences a significant functional impairment in communication during activities of daily living," and that he needed hearing aids. The Veteran underwent a VA audiology examination in May 2010. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 30 65 75 80 LEFT -- 35 65 85 85 The average pure tone threshold was 63 in the right ear and 68 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in each ear. Applying the results of the May 2010 examination to Table VI of the VA regulations yields a Roman numeral value of III in both ears. Applying the results of the May 2010 examination to Table VII, the Board must find that the Veteran's bilateral hearing loss warrants a noncompensable evaluation, and no higher. There are no other audiograms for the period prior to January 22, 2013. The Veteran underwent a second VA examination January 22, 2013. This examination was the basis for the grant of a 10 percent evaluation. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 35 70 75 80 LEFT -- 35 60 80 80 The average pure tone threshold was 65 in the right ear and 64 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 72 percent in the left ear. Applying the results of the January 2013 examination to Table VI of the VA regulations yields a Roman numeral value of III in the right ear and V in the left ear. The examiner found that the Veteran's bilateral hearing loss did not impact ordinary conditions of daily life, including his ability to work. Applying the results of the January 2013 examination to Table VII, the Board must find that the Veteran's bilateral hearing loss warrants a 10 percent evaluation, and no higher. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's bilateral hearing loss does not more closely approximate a compensable rating prior to January 22, 2013 or a disability evaluation greater than 10 percent thereafter. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's symptoms from bilateral hearing loss have not met the criteria for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's bilateral hearing loss are contemplated by the schedular criteria; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. Total Rating Based Upon Individual Unemployability (TDIU) When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted, the evidence does not show that his bilateral hearing loss has caused unemployability. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER An initial compensable disability evaluation for bilateral hearing loss prior to January 22, 2013 is denied. A disability evaluation in excess of 10 percent for bilateral hearing loss as of January 22, 2013 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs