Citation Nr: 1320847 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-46 846A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable disability rating for service-connected high tone sensorineural hearing loss of the left ear. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision, which continued a 0 percent evaluation for service-connected high tone sensorineural hearing loss of the left ear. In reviewing the Veteran's appeal for an increased rating, the Board has not overlooked the recent holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board notes that the Veteran has not set forth specific assertions relating his service-connected left ear hearing loss to unemployability. Moreover, the Board notes that the Veteran was denied entitlement to TDIU during the course of this appeal in a July 2011 rating decision. The Veteran did not appeal the denial of a TDIU. Accordingly, the issue of entitlement to TDIU is not currently before the Board. In October 2012, the Board remanded the Veteran's claim for further development. The requested action was taken and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. The Veteran's left ear hearing loss disability is manifested by no more than Level IV hearing impairment at any time during the appeal period. 2. The evidence of record does not show that the Veteran's service-connected left ear hearing loss disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial compensable disability rating for a bilateral hearing loss disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2012). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As noted in the Introduction above, the Board remanded the Veteran's claim in October 2012. The Board requested that the agency of original jurisdiction (AOJ) obtain an outstanding VA treatment record, dated in December 2009. In compliance with the October 2012 remand directive, the AOJ obtained this treatment record and associated it with the claims file. Thus, there is compliance with the Board's remand instructions. See Stegall, 11 Vet. App. at 271. Preliminary Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it 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. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in June 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim. These arguments have generally referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has not indicated private treatment for his left ear hearing loss disability. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran appropriate VA examination most recently in January 2011. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living and usual occupation. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the January 2011 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 38 C.F.R. § 4.85, Diagnostic Code 6100, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. Scores are simply matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. 38 C.F.R. § 4.86 allows for the use of either Table VI or Table VIA in determining the appropriate numeric designation when there are exceptional patterns of hearing impairment. The regulation is applicable where testing shows that the veteran had puretone thresholds of 55 decibels or more in each of the specified frequencies (1000, 2000, 3000 and 4000 Hertz) or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 or more decibels at 2000 Hertz. See 38 C.F.R. § 4.86. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). As a general rule, if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation for hearing impairment, the non-service connected ear is assigned a Roman numeral designation of I for hearing impairment. 38 C.F.R. § 4.85(f) (2012). If, however, hearing impairment in the service-connected ear is itself compensable to a degree of 10 percent or more, and the nonservice-connected ear otherwise meets VA's definition of impaired hearing set forth in 38 C.F.R. § 3.385, then the evaluation of the Veteran's hearing impairment proceeds as if both ears were service-connected. 38 C.F.R. § 3.383(a)(3) (2012). Factual Background and Analysis The Veteran contends that his left ear hearing loss disability warrants a compensable rating. The Veteran was originally in effect beginning in November 1975. He was assigned a noncompensable rating. He filed his current claim for increase in April 2006. Following his request for increase, the Veteran was afforded a VA audiological examination in April 2007, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 25 35 75 80 54 Speech discrimination score in the left ear is 88 percent. The examiner diagnosed normal to severe sensorineural hearing loss in the left ear. The Veteran was seen for VA audiological treatment in December 2009, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 30 45 80 85 60 Speech discrimination testing revealed a score of 78 percent in the left ear. The Veteran underwent another VA audiological examination in September 2010, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 35 55 80 80 63 Speech discrimination score in the left ear is 78 percent. The examiner opined that the Veteran's left ear hearing loss had no significant effects on his usual occupation or his daily activities The Veteran was afforded another VA audiological examination in January 2011, during which puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 35 55 80 80 63 Speech discrimination score in the left ear is 78 percent. The examiner also diagnosed normal to severe sensorineural hearing loss in the left ear. The examiner opined that the Veteran's left ear hearing loss had no significant effects on his usual occupation or his daily activities. Additionally, the audiologist indicated that the Veteran's left ear hearing loss is not so incapacitating as to prevent him from engaging in substantially gainful employment consistent with his education and occupational experience. The Veteran currently receives VA treatment for various disabilities. Noted in his medical history is "tone deafness" in the left ear, and that he wears a hearing aid in his right ear. He has not reported any significant left ear complaints through the course of his VA treatment. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for his service-connected left ear hearing loss disability. First, the Board notes that § 3.383(a)(3), which provides for the treatment of both ears together as if each were service-connected, is inapplicable in this case. Although the right ear meets VA's definition of hearing loss disability under § 3.385, hearing loss in the service-connected left ear is not compensable to a degree of 10 percent or greater. Thus, the calculation of disability as if both ears were service connected is not warranted in this case. Using the audiological testing results from the September 2010 and January 2011 examinations, the Veteran had a puretone threshold average of 63 in the left ear. Again, the Veteran's speech discrimination score was 78 percent in the left ear. This result in a numeric designation of IV in left ear. The numeric designation of I (for the nonservice-connected right ear) converges with the numeric designation of IV at a point that indicates noncompensable percent rating. As such, the Veteran's left ear hearing loss disability warrants a noncompensable rating based upon the findings of these audiological examination. The Board has considered the application of 38 C.F.R. § 4.86 (2012) [exceptional patterns of hearing impairment]. However, the Veteran's left ear hearing loss disability does not meet the criteria under that section. More specifically, none of the Veteran's hearing tests of his left ear show a result of 30 dB or less at 1000 Hz, and none of them show a result of 70 dB or more at 2000 Hz, as would be required for application of Table IVA under 38 C.F.R. § 4.86(b). In any event, as discussed above, pursuant to the provisions of § 4.85(f), the non-service-connected right ear is assigned a Roman numeral designation of hearing impairment of I for the purposes of determining the rating for hearing impairment. Further, the Veteran does not meet the criteria for 38 C.F.R. § 4.86(a), as the audiological examinations of record does not show that each of the four specified frequencies are 55 dB or more. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination, and here the Veteran has not presented any evidence that the examination was defective or that there was any prejudice caused by any deficiency in the examination. Indeed, the Veteran did not report to the examiners that he had limitation due to his left ear hearing loss. The Board has considered the statements made by the Veteran regarding his hearing loss and his in-service noise exposure. The schedular criteria, however, are specific, and the Veteran's left ear hearing loss is simply not of such severity to warrant a compensable rating based on audiological testing results of record. See Lendenmann, 3 Vet. App. at 349. Therefore, the Veteran's claim for a compensable rating for left ear hearing is denied. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left ear hearing loss disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left ear hearing loss disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports tone deafness in his left ear. As discussed above, the current noncompensable rating is adequate to fully compensate the Veteran for left ear hearing loss and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A compensable rating for high tone sensorineural hearing loss of the left ear is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs