Citation Nr: 1320249 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-39 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's hearing loss disability is manifested by decreased hearing in both ears, left worse than right. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, VCAA notice concerning the underlying claim for service connection was provided in August 2008. However, the Veteran's appeal for a higher rating arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and 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). VA also 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, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records and VA examination reports. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for bilateral hearing loss was granted in a February 2009 rating decision. The RO assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran contends that he is entitled to a higher initial disability rating for his bilateral hearing loss because of the impact that his hearing loss has on his family life. He states that he often cannot understand what friends and family are saying to him and he has to constantly ask them to repeat themselves. In cases for which the evaluation of hearing loss is at issue, ratings range from non-compensable 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012). The disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a) (2012). Further, when the average puretone threshold 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. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b) (2012). Each ear is considered separately. 38 C.F.R. § 4.86. The Veteran underwent a VA audiological examination and evaluation in October 2008. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 65 75 LEFT 10 70 75 75 The Veteran's right ear puretone threshold average was 47.5 decibels and his left ear puretone threshold average was 57.5 decibels. Speech audiometry tests revealed a speech recognition ability of 94 percent in his right ear and 80 percent in his left ear. The examiner's impression was that the Veteran had normal to moderately severe sensorineural hearing loss. Applying the results from the October 2008 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level IV hearing loss in the left ear. The Board notes that the left ear audiological findings also reveal in an exceptional pattern of hearing impairment in the left ear, with a puretone threshold less than 30 decibels at 1000 Hertz and of 70 decibels at 2000 Hertz. Thus, consideration under 38 C.F.R. § 4.86(b) is required for the left ear. Applying the puretone average of 57.5 to Table VIA also results in Level IV hearing loss, which is then elevated to the next level. Thus, the findings applied to Table VIA result in Level V hearing loss in the left ear. The right ear does not meet the criteria for consideration under 38 C.F.R. § 4.86. When one ear has Level I hearing loss and the other ear has Level V hearing loss, a 0 percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in August 2010. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 40 75 80 LEFT 10 65 80 80 The Veteran's right ear puretone threshold average was 52.5 decibels and his left ear puretone threshold average was 58.75 decibels. Speech audiometry tests revealed a speech recognition ability of 88 percent in his right ear and 80 percent in his left ear. The examiner's impression was that in both ears, the Veteran had sloping moderate to severe high frequency sensorineural hearing loss. Applying the results from the August 2010 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level IV hearing loss in the left ear. On this examination, the audiological findings do not support consideration of 38 C.F.R. § 4.86 for either ear. When one ear has Level I hearing loss and the other ear has Level IV hearing loss, a 0 percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85. The VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and are highly probative. In this regard, in addition to the above audiological findings, the Veteran reported during the October 2008 examination that his situation of greatest difficulty is communication problems that result in constant repetitions with much difficulty hearing on the telephone. The Veteran also discussed the impact of his hearing loss on his family life in his substantive appeal. The evidence of record further notes that the Veteran worked full time in body and fender repair until he retired in June 2009 due to reasons other than hearing loss. He is presently in receipt of a total disability rating based on individual unemployability from that date. Thus, the Board finds no prejudice in deciding the claim. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board acknowledges the Veteran's complaints regarding the functional impact of his hearing loss on his daily life. However, the evaluation of hearing loss is predicated upon the results of the audiology studies of record. See Lendenmann, supra. The findings on the objective examinations are more probative than the lay contentions as to the extent of hearing loss. Upon review of the evidence of record, the Board finds no evidence that the Veteran's bilateral hearing loss has more nearly approximated the criteria for a compensable evaluation at any time during this appeal. As such, the Board finds that the currently assigned 0 percent evaluation is appropriate for the entire period. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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 Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for more severe hearing loss than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs