Citation Nr: 1321428 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-22 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1969 to August 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, September 2011, and February 2012, the Board remanded the case for additional development. As the development was completed, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2011, the Veteran raised the claim of service connection for tinnitus, which is referred to an Agency of Original Jurisdiction for appropriate action. FINDING OF FACT Throughout the appeal period, the bilateral hearing loss disability has been manifested by Level I hearing in the right and left ears. CONCLUSION OF LAW The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met at any time during the appeal. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the initial rating claim, the RO provided pre-adjudication VCAA notice by letter, dated in April 2006 on the underlying claim of service connection. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating, following the initial grant of service connection. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was afforded VA examinations in October 2006, March 2011, and October 2011. The Veteran was also offered an opportunity to testify before the Board, but he declined. The VA examinations include a review of the history of the disability and findings sufficient to rate the disability under the appropriate rating criteria. For these reasons, the examinations are adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Additionally, the VA examination in October 2011 included a description of the functional effects caused by the Veteran's hearing loss on the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007). There is no evidence in the record dated subsequent to the last VA examination that shows a material change in the condition to warrant a reexamination. 38 C.F.R. § 3.327(a). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). Facts and Analysis On private audiological testing in January 2006, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 10, 5, 55 and 65, respectively, in the RIGHT ear; and 10, 10, 55, and 60, respectively, in the LEFT ear. Speech discrimination was tested, but it is not shown that the Maryland CNC word list was used as required to rate hearing loss for the purpose of VA compensation under 38 C.F.R. § 4.85(a). For this reason, the speech discrimination scores of 70 percent in the right ear and 80 percent in the left ear are inadequate to rate hearing loss under 38 C.F.R. § 4.85(a). Otherwise the puretone thresholds at the tested frequencies are consistent with audiograms by VA in October 2006 and in March 2011 and in October 2011. On VA audiological examination in October 2006, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 10, 0, 50 and 60, respectively, in the RIGHT ear; and 5, 0, 55, and 60, respectively, in the LEFT ear. The puretone threshold average in both the RIGHT and LEFT ears was 30. The speech discrimination scores were 100 percent in the RIGHT and LEFT ears. Applying the results in TABLE VI, the findings yield a numeric designation of Level I for the RIGHT and LEFT ears, as the average 30 puretone decibel loss for both ears is in the range between 0 and 41 average puretone decibel loss, and RIGHT and LEFT ear speech discrimination scores are 100 percent. Entering the resulting bilateral numeric designation of Level I for the RIGHT and LEFT ears to TABLE VII yields a noncompensable or zero percent disability rating under Diagnostic Code 6100. As the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz is not 55 decibels or more, or the puretone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz , an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86 . In a rating decision in May 2007, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective March 6, 2006. The Veteran appealed the assigned rating. On VA audiological examination in March 2011, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 15, 10, 50, and 60, respectively, in the RIGHT ear; and 10, 10, 55, and 65, respectively, in the LEFT ear. The puretone threshold average in the RIGHT ear was 34, and the puretone threshold average in the LEFT ear was 35. The speech discrimination scores were 100 percent in the RIGHT and LEFT ears. Applying the results in TABLE VI, the findings yield a numeric designation of Level I for both ears, as the average 34 puretone decibel loss in the RIGHT ear and 35 puretone decibel loss in the LEFT ear are in the range between 0 and 41 average puretone decibel loss, and LEFT and RIGHT ear speech discrimination scores are 100 percent. Entering the resulting numeric designation of Level I for each ear to TABLE VII yields a noncompensable or zero percent rating under Diagnostic Code 6100. As the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz is not 55 decibels or more, or the puretone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz , an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86 . On VA audiological examination in October 2011, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 10, 10, 55, and 60, respectively, in the RIGHT ear; and 10, 10, 55, and 65, respectively, in the LEFT ear. The puretone threshold average in the RIGHT ear was 34, and the puretone threshold average in the LEFT ear was 35. The speech discrimination scores were 100 percent in the RIGHT and LEFT ears. Applying the results in TABLE VI, the findings yield a numeric designation of Level I for both ears, as the average 34 puretone decibel loss in the RIGHT ear and average 35 puretone decibel loss in the LEFT ear are in the range between 0 and 41 average puretone decibel loss, and LEFT and RIGHT ear speech discrimination scores are 100 percent. Entering the resulting numeric designation of I for each ear to TABLE VII yields a noncompensable or zero percent rating under Diagnostic Code 6100. As the puretone threshold at each of the four specified frequencies 1000, 2000, 3000, and 4000 Hertz is not 55 decibels or more, or the puretone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz , an exceptional pattern of hearing impairment is not shown under 38 C.F.R. § 4.86 . The Veteran stated that he was a bus driver and that he often had difficulty hearing children, who sitting behind him, especially, when several children were talking at the same time. The Board has considered whether a staged rating is appropriate; however, on the basis of the VA examinations, the Veteran's hearing loss did not meet the criteria for a compensable rating at any time during the appeal period, so a staged rating is not warranted. For these reasons, the preponderance of the evidence is against a compensable rating for a bilateral hearing loss disability, and the benefit-of-the doubt standard does not apply. 38 C.F.R. § 5107(b). Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Although in a statement in April 2011, the Veteran stated that his hearing aids did not help his hearing loss, working an outside job, consisting of manual labor, because he could not keep the hearing aids dry or free of dirt, and he later stated that he was a bus driver and that he often had difficulty hearing children, sitting behind him, the rating criteria reasonably describe the Veteran's disability level and symptomatology. In other words, the Veteran's hearing loss is not such an exceptional disability with marked interference with employment as to render impractical the application of the regular schedular criteria. As the Veteran does not experience any hearing loss symptomatology not already encompassed in the rating criteria, and the assigned schedular rating is therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER An initial compensable rating for a bilateral hearing loss disability is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs