Citation Nr: 1320238 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-19 611 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased (compensable) schedular rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO denied an increased (compensable) rating for bilateral hearing loss. In June 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued on April 9, 2009 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) on April 24, 2009. A review of the Virtual VA electronic claims processing system reveals that, by decision dated October 2009, the RO granted a claim of service connection for tinnitus and assigned an initial 10 percent evaluation effective August 18, 2008. Neither Virtual VA nor the Veterans Appeals Control and Locator System (VACOLS) reflect that the Veteran has initiated an appeal on this decision. There are no additional, pertinent records located within Virtual VA which are not currently associated with the paper claims file. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Pertinent to the March 2000 claim for increase, audiometric testing has revealed no worse than Level II hearing in the right ear, and Level I hearing in the left ear for the entire appeal period. CONCLUSION OF LAW The criteria for an increased (compensable) rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In a claim for increase, the VCAA requires notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced diagnostic code under which the disability is rated). The Veteran filed his claim for an increased rating in March 2008. The Veteran was provided a fully compliant, pre-adjudicatory generic notice on this claim on March 24, 2008. In this letter, the Veteran was advised of the types of evidence needed to substantiate his claim which included describing his symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by his disability. Additionally, the Veteran was advised of the respective duties upon himself and VA in obtaining evidence to substantiate the claim as well as the criteria for establishing a disability rating and effective date of award. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) 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 with respect to the claim decided on appeal, and therefore appellate review may proceed without prejudice to the Veteran. The RO has obtained the Veteran's STRs and determined that the Veteran has not filed a claim for disability benefits with the Social Security Administration (SSA). See Veterans Benefits Administration (VBA) Ready Screen dated June 2008. The Veteran has not identified any relevant VA or private treatment records other than a private audiology consultation report which he provided to VA. The Board notes that the private audiology report, dated June 2008, clearly reflects that the examiner performed word recognition testing using the Northeastern University (NU) auditory test wordlist. This format of testing is not acceptable for VA rating purposes, which requires use of the Maryland CNC Word Recognition List. 38 C.F.R. § 4.85(a). As such, the Board has no duty to seek clarification of the word list used. See generally Savage v. Shinseki, 24 Vet. App. 259 (2011) (when a private examination report is "unclear" or "not suitable for rating purposes," VA has a duty to seek clarification or explain why additional development of clarification is not needed). The Veteran was afforded VA audiology examination in April 2008, and this report has been associated with the claims file. This audio examination report contains all necessary findings. Neither the Veteran nor his representative has argued entitlement to a higher rating based on an extra-schedular basis under 38 C.F.R. § 3.321(b). As such, any deficiencies with regard to discussing the effects the Veteran's service-connected bilateral hearing loss has on his occupational functioning and activities of daily living is non-prejudicial. See generally Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board also notes that the Veteran has provided a private audiometric examination in graphical representation format dated June 2008. The audiometric results do not substantially deviate from the audiometric findings by VA in April 2008 and cannot be reasonably interpreted as reflecting an increased severity of hearing loss to the point where a compensable rating may be warranted. The private speech recognition scores using the NU wordlist were substantially lower than the VA Maryland CNC results. The private examiner reported that word list testing was performed at the Veteran's Most Comfortable levels (MCL). On the other hand, the Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Exams (hereinafter "the VA Handbook") specifies, "[a]n examination of hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (specifically, the Maryland CNC recording) and a pure tone audiometry test in a sound isolated booth that meets American National Standards Institute standards . . . for ambient noise." (emphasis added). Thus, the discrepancy of findings do not suggest a potential hearing decrease over a two-month period, but rather different results stemming from different testing standards. The Board also finds no credible lay or medical evidence demonstrating or alleging a decrease in the Veteran's hearing acuity since the April 2008 VA examination. Thus, there is no duty to provide further medical examination on the bilateral hearing loss claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Rating Historically, a May 1996 Board decision granted service connection for bilateral hearing loss. A June 1996 RO rating decision assigned a 0 percent (noncompensable) rating effective January 27, 1994. The Veteran filed the instant claim for increased rating in March 2008. He appeals a May 2008 RO rating decision continuing the noncompensable rating. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) 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. 38 C.F.R. § 4.86(a). When the pure tone thresholds 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will consider the propriety of a staged rating in this appeal. On the April 2008 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: RIGHT EAR 500 HZ: 5 dB 1000 HZ: 5 dB 2000 HZ: 55 dB 3000 HZ: 80 dB 4000 HZ: 75 dB Average: 53.75 LEFT EAR 500 HZ: 5 dB 1000 HZ: 5 dB 2000 HZ: 30 dB 3000 HZ: 65 dB 4000 HZ: 70 dB Average: 42. 5 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 94 percent in the left ear. A diagnosis of bilateral sensorineural hearing loss was assigned. Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluations, the April 2008 audiometric testing revealed Level II hearing in the right ear and Level I hearing in the left ear. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. As the audiometric tests do not demonstrate puretone thresholds of 55 decibels or more in the frequencies of 1000, 2000, 3000 and 4000 Hertz, and do not demonstrate a puretone threshold of 70 decibels or more at 2000 Hertz, an exceptional pattern of hearing loss under Table VIA is not for application. 38 C.F.R. § 4.86(a), (b). The Board is aware that the Veteran has provided a private audiology report dated June 2008, wherein this examiner provided opinion that the Veteran's right ear hearing loss warranted a Level V designation for the right ear and a Level II designation for the left ear. Unfortunately, the Board cannot utilize these results for evaluation purposes, as the examiner relied upon word recognition testing results from the Northeastern University Auditory Testing wordlist, which is not an acceptable format for VA rating purposes. 38 C.F.R. § 4.85(a). The Board is also aware of the descriptions of decreased hearing acuity by the Veteran and his personal acquaintances. The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss; however, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology study of record which is in a specified format for VA rating purposes. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As a final point, the Board notes that neither the Veteran nor his current representative has asserted the Veteran's entitlement to a higher, extra-schedular rating for bilateral loss, and such is not otherwise raised by the evidence of record. See Colayong v. West, 12 Vet. App. 524, 536 (1999). Hence, any potential deficiency in the April 2008 examination for failing to fully discuss the functional effects of hearing loss is not prejudicial as such factors would be only be relevant to a claim for a higher rating on an extra-schedular basis (see Martinak, 21 Vet. App. 447 (2007)). For all the foregoing reasons, there is no factual basis for a staged rating for any time during the appeal period, and the claim for an increased (compensable) schedular rating must be denied. In reaching the conclusion to deny the claim on a schedular basis, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, given the method for deriving schedular ratings for hearing, that doctrine is not for application in this appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 54, 56 (1990). . ORDER The claim for an increased (compensable) schedular rating for bilateral hearing loss is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs