Citation Nr: 1321367 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-36 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable (greater than 0 percent) disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from April 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Board hearing in May 2013 before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran's hearing manifested by no more than Level I hearing acuity in the right ear and Level III hearing acuity in the left ear. 2. The Veteran's functional impairment includes difficulty hearing with noise or multiple speakers, especially in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA call for 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). The record shows that through a VCAA letters dated March 2008 and August 2009, the Veteran was informed of the information and evidence necessary to substantiate the claim. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. The case was readjudicated in April 2012. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the Veteran. As discussed above, the VCAA provisions have been considered and complied with. 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. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. 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). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the increased rating claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms during the period on appeal. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Increased Rating - Hearing Loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. In February 2007, the Veteran received a private audiogram. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 50 55 LEFT 35 45 -- 60 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. The Veteran was afforded an audiological assessment during treatment by VA in September 2007. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 35 60 60 LEFT 35 50 -- 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. The examiner noted that the Veteran would likely experience communication difficulties in noisy listening environments. The Veteran underwent a private pure-tone audiogram in March 2008. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 50 55 LEFT 35 50 -- 65 Speech audiometry revealed speech recognition ability of 96 percent on the right and 88 percent on the left. In April 2008, the Veteran received another private audiogram. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 -- 45 LEFT 35 45 -- 60 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. In July 2008, the Veteran underwent a VA examination. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 35 60 60 LEFT 40 55 70 65 The pure tone averages were 43.75 decibels on the right and 57.5 decibels on the left. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 84 percent in the left ear. The examiner noted that the Veteran reported difficulty trying to listen when more than one person is talking. The Veteran was afforded a VA examination most recently in February 2012. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 35 55 60 LEFT 45 70 75 75 The pure tone averages were 41.25 decibels on the right and 66.25 decibels on the left. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. The Veteran reported difficulty understanding conversations in noise and when the speaker is on his left side. In March 2012, the Veteran attended another private audiogram. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 45 55 LEFT 45 60 70 65 The pure tone averages were 37.5 decibels on the right and 60 decibels on the left. Speech audiometry revealed speech recognition ability of 80 percent bilaterally. As the audiological findings do not show pure tone thresholds at 55 decibels or more at each of the four specified frequencies and does not show 70 decibels or more at 2000 Hertz with 30 decibels or less at 1000 Hertz, the Board will not determine the Roman numeral designation for hearing impairment from Table VIA. Only Table VI will be used. 38 C.F.R. § 4.86. The Board notes that the private audiograms used a W-22 word list rather than a Maryland CNC word list when determining speech discrimination scores. The regulation requires the use of Maryland CNC word lists for the controlled speech discrimination test. 38 C.F.R. § 4.85(a). Therefore, the Board may not use those scores when calculating the current level of severity of bilateral hearing loss. Likewise, since only the July 2008 and February 2012 VA examination reports contained all the necessary information to evaluate the Veteran's disability under the rating criteria, only those results will be addressed. When applying the pure tone averages and speech recognition scores from July 2008 to Table VI, the right ear is assigned a Level I and the left ear is assigned a Level III. When applying the pure tone averages and speech recognition scores from February 2012 to Table VI, the right ear is assigned a Level I and the left ear is assigned a Level II. The Board then applies those levels to Table VII, which results in a 0 percent, noncompensable evaluation for the Veteran's bilateral hearing loss. The audiological examinations addressed the functional limitations related to hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiners in September 2007, July 2008, and February 2012 noted that the Veteran was having communication difficulties in noisy listening environments, difficulty trying to listen when more than one person is talking, and difficulty understanding conversations in noise and when the speaker is on his left side. Nevertheless, a compensable disability rating for bilateral hearing loss is not warranted based on any audiological findings of record that meet the regulatory requirements. For these reasons, the Board finds that the criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated at any time during the initial rating period. 38 C.F.R. § 4.85, Diagnostic Code 6100. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. In making this determination, the Board is cognizant of the holding of Martinak v. Nicholson, 21 Vet. App. 447 (2007). In that decision, the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The 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. Id. at 455. In this case, the Board acknowledges the Veteran's decreased hearing acuity. The Board notes that the Veteran was noted to have difficulty hearing during noise or multiple conversations, especially out of the left ear. These symptoms, however, are consistent with the assigned disability evaluations described above and are not "exceptional." Moreover, the Veteran has not asserted, and the Board has not found, any reason to doubt the accuracy of the audiological examinations. As the Veteran's hearing loss was appropriately measured, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted. ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs