Citation Nr: 1321612 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 04-41 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial increased disability rating for bilateral hearing loss in excess of noncompensable from March 26, 2003 to July 14, 2004; in excess of 50 percent from July 15, 2004 to September 22, 2004; in excess of noncompensable from September 23, 2004 to January 14, 2009; and in excess of 40 percent from January 14, 2009 to November 1, 2009. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from October 1954 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, granted service connection and assigned an initial noncompensable rating for bilateral hearing loss, effective March 26, 2003. In an April 2007 decision, the Board denied the matter on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2008, the Court issued a memorandum decision, remanding the issue of entitlement to a compensable initial rating for bilateral hearing loss to the Board. The appeal was returned to the Board for action consistent with the October 2008 remand. As has been previously noted, at that time the Court's remand specifically stated that the Veteran had abandoned his claims of entitlement to an increased rating for tinnitus and extraschedular consideration. As such, these issues are not before the Board. In July 2009, the Board remanded the Veteran's claim of entitlement to an initial compensable rating for bilateral hearing loss to the RO for further evidentiary development, including obtaining updated VA and private treatment records and a new VA examination. In a May 2010 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 50 percent effective November 2, 2009. Thereafter, in a July 2010 letter and a February 2011 brief, the Veteran's representative indicated that the Veteran was only pursuing entitlement to a compensable rating prior to November 2, 2009. As such, the issue of entitlement to a rating in excess of 50 percent from November 2, 2009 to the present has been effectively withdrawn. While the Veteran's representative indicated that an effective date prior to November 2, 2009, for the assignment of a 50 percent evaluation was at issue, the Board concludes that, based on the arguments presented, an increased rating for the earlier time period is, in fact, at issue. Accordingly, the issue has been so framed by the Board. Thus, the Board will only consider whether higher disability ratings for the Veteran's bilateral hearing loss for the period prior to November 2, 2009, are warranted. In a March 2011 decision, the Board denied an initial compensable rating for bilateral hearing loss prior to July 15, 2004, granted a 50 rating from July 15, 2004 to September 22, 2004, and denied a compensable rating from September 23, 2004 to November 1, 2009. The Veteran again appealed the Board's decision to the Court. In August 2011, the Court issued an order granting an August 2011 joint motion to remand (JMR) the appeal to the Board. The appeal was returned to the Board for action consistent with the August 2011 JMR and Court order. In February 2012, the Board remanded the issue of entitlement to an initial compensable rating for bilateral hearing loss for the period prior to November 2, 2009, for additional development. Thereafter, in an October 2012 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 40 percent, effective January 14, 2009. An initial 0 percent disability rating for the period prior to January 14, 2009 was continued, as reflected in an October 2012 supplemental statement of the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to July 15, 2004, the Veteran's right ear hearing loss had a Numeric Designation of II as per Table VI of the VA schedule of ratings; the Veteran's left ear hearing loss had a Numeric Designation of II as per Table VI of the VA schedule of ratings. 2. From July 15, 2004 to November 1, 2009, the Veteran's right ear hearing loss had a Numeric Designation of VII as per Table VI of the VA schedule of ratings; the Veteran's left ear hearing loss had a Numeric Designation of IX as per Table VI of the VA schedule of ratings CONCLUSIONS OF LAW 1. Prior to July 15, 2004, the criteria for a compensable initial disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012). 2. By resolving all reasonable doubt in the Veteran's favor, for the period July 15, 2004 to November 1, 2009, the criteria for a 50 percent initial disability rating for bilateral hearing loss, but no higher, have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to notify and assist With respect to the Veteran's claim decided herein, 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 , 3.159, 3.326 (2012). Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his attorney suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Further, the Board notes that where service connection has been granted and an initial rating has been assigned, the claim for service connection has been more than substantiated, as 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 for service connection has been substantiated, the filing of a notice of disagreement with the RO's initial disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. Accordingly, as the notice provided before service connection was granted for PTSD in an October 2010 rating decision was legally sufficient, VA's duty to notify the Veteran in regard to his claim of entitlement to increased initial disability ratings in this case was satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time identified any outstanding treatment records that he wanted VA to obtain. 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) (2012). The RO provided the Veteran with VA examinations for his bilateral hearing loss in association with his claim in May 2003 and September 2004. The examiners considered the Veteran's reported history and provided a thorough physical examination, including conducting the appropriate audiometric testing. Additionally, the examiners noted the functional effects of the Veteran's hearing loss disability. In addition, the July 2004 private audiological results are consistent with VA testing requirements. Therefore, the Board finds that the examinations are adequate for determining the disability rating(s) for bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim); Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Additionally, the Veteran's current appeal only addresses his disability rating for hearing loss prior to November 2, 2009, not his current level of hearing loss. As such, there is no need to remand the claim for a new VA examination to determine his current level of hearing loss. 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). II. Analysis As indicated in the introduction section above, the Court specifically stated that the Veteran had abandoned any claim of entitlement to extraschedular consideration. Additionally, the Veteran's representative's July 2010 and February 2011 correspondence indicated that he was not pursuing entitlement to a disability rating in excess of 50 percent from November 2, 2009. As such, the Board will only consider the Veteran's entitlement to a schedular compensable rating prior to November 2, 2009. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has been assigned an initial noncompensable rating under Diagnostic Code 6100 for his service-connected bilateral hearing loss from March 26, 2003 to July 14, 2004; a 50 percent rating from July 15, 2004 to September 22, 2004; a noncompensable rating from September 23, 2004 to January 13, 2009; and a 40 percent rating from January 14, 2009 to November 1, 2009. While cognizant of the RO's assignment of staged ratings, the Board finds that, by resolving all reasonable doubt in favor of the Veteran, that his service-connected bilateral hearing loss has warranted a continuous 50 percent rating, but not higher, since July 15, 2004. Therefore, the Board considers it unnecessary to divide the period on appeal into three distinct stages for purposes of discussing and weighing the pertinent evidence of record. Fenderson v. West, 12 Vet. App. 119 (1999). A compensable rating is not warranted from March 26, 2003 to July 14, 2004. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. 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 (Maryland CNC), 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 (2012). An examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). 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 (2012). (a) 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. (b) 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. As noted above, under VA rating criteria, an adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Pertinent evidence In a March 2003 letter, Dr. W. L. V. stated that the Veteran underwent an audiogram which showed profound sensory neural hearing deficit in both ears. He did not include either Maryland CNC speech discrimination test results or puretone audiometry test results. As such, this piece of medical evidence cannot be used to establish a higher disability rating for the Veteran's service-connected bilateral hearing loss. In September 2012, the doctor's office indicated that this was the only information available, with no indication as to the actual test results. A May 2003 VA audiological evaluation was provided and audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 70 75 65 61.25 LEFT 45 75 75 75 67.50 Speech discrimination scores on the Maryland CNC word list were 92 percent in the right ear and 100 percent in the left ear. The Veteran complained of hearing loss, with the greatest difficulty in understanding speech and missing environmental sounds, such as the telephone ringing and pagers and appliances beeping. According to 38 C.F.R. § 4.85, the right ear had a designation of II and the left ear had a designation of II, based on Table VI. The point where II and II intersect on Table VII indicates a disability rating of 0 percent. A July 2004 private audiogram that complies with VA standards was submitted. The audiogram and accompanying letter did not interpret the specific puretone audiometry results for each frequency, but did provide puretone averages of 72.5 for the right ear and 75 for the left ear. The audiologist also indicated that the Veteran exhibited speech recognition ability of 64 percent in the right ear and 48 percent in the left ear. According to 38 C.F.R. § 4.85, the right ear had a designation of VII and the left ear had a designation of IX, based on Table VI. The point where VII and IX intersect on Table VII indicates a disability rating of 50 percent. A September 2004 VA audiological evaluation was provided and audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 35 70 75 70 62.50 LEFT 50 75 70 75 67.50 Speech discrimination scores on the Maryland CNC word list were 88 percent in the right ear and 92 percent in the left ear. The Veteran complained of difficulty understanding people if they are walking away from him. The diagnosis was mild to severe sensorineural hearing loss, right ear, and moderate to severe sensorineural hearing loss in the left ear. According to 38 C.F.R. § 4.85, the right ear had a designation of III and the left ear had a designation of II, based on Table VI. The point where III and II intersect on Table VII indicates a disability rating of 0 percent. Private audiograms dated in April 2003 and in January 2009 audiograms from K. D. B. include word recognition scores using the CID W-22 test. Although the Board notes K. D. B.'s contention in a May 2010 letter that the CID W-22 is a long-established method for establishing speech recognition ability, the regulation specifically states that examinations of hearing impairment must utilize the Maryland CNC test. In the May 2010 letter, K. D. B. stated that the results do not have a percentage score from the Maryland CNC. The Board does not have the authority or discretion to ignore applicable provisions of the regulations. As such, this medical evidence cannot be used to establish a higher disability rating for the Veteran's service-connected bilateral hearing loss. A November 2009 VA audiological evaluation was provided and audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 70 80 65 63.75 LEFT 50 65 65 70 62.50 Speech discrimination scores on the Maryland CNC word list were 52 percent in the right ear and 36 percent in the left ear. The diagnosis was mild to severe sensorineural hearing loss, right ear, and moderate to severe sensorineural hearing loss in the left ear. According to 38 C.F.R. § 4.85, the right ear had a designation of VII and the left ear had a designation of IX, based on Table VI. The point where VII and IX intersect on Table VII indicates a disability rating of 50 percent. There were no significant effect on occupation noted and no effects on usual daily activities. The VA examiner opined that the audiometric results of all the VA and the remainder of the privately obtained audiological evaluations were not inconsistent, if the passage of time is considered. What did change significantly between the results of 2003 and the results of the present examination was the results of the word recognition scores, which document a worsening of word recognition ability. The differences between word recognition scores obtained in 2004 at the VA and at UAA could be accounted for with the possible differences in testing conditions and presentation methods. In April 2010, the prior VA audiologist provided an addendum opinion that he could not reconstruct the circumstances related to the cause of the differences in word recognition scores between the VA examination and private examinations of 2003 and 2004. There are three speculations: 1. The test conditions between the facilities of the VA and those of the privately-managed locales; 2. The presentation levels at which test stimuli were given (for example, the presentation level for Word Recognition at the Audiological Hearing Care was only 25dB about the SRTs assessed, whereas the VA method prescribes a beginning level of 40dBHL, a difference which could understandably affect the percentage of correct word responses); and 3. A difference in level of patient cooperation with test procedures. In a May 2013 written brief presentation, the Veteran's attorney argues that the Veteran is entitled to a 40 percent disability rating, effective from the July 2004 private audiological examination. The Veteran's attorney contends that based on the opinion provided by the VA audiologist in November 2009 and April 2010, the difference in presentation levels for the Word Recognition testing used by the private audiologist and VA audiologist resulted in the differences. Further, while the VA method prescribes a beginning level of 40dBHL, and the private audiologist used 25dB, the regulations do not require a specific presentation level be used under 38 C.F.R. § 4.85. In fact the requirements are only that the audiological examination be conducted by a state licensed audiologist and includes both Maryland CNC testing and a puretone audiometry test. Comparison In this context, there are three relevant, adequate audiological examinations of record, dated between May 2003 and November 2009. These clinical data reflect that the results of audiological testing by VA demonstrate that a noncompensable rating is warranted at the time of the May 2003 and September 2004 VA audiological examinations and that the July 2004 private examiner's testing results demonstrate that a 50 percent disability rating is warranted. The Board notes that subsequent to the July 2004 private audiology report, another VA examination was conducted in September 2004. As indicated above, the clinical data contained in the September 2004 VA report show audiological testing results that equate to a noncompensable rating. In assessing the VA and private reports of 2004, the Board observes that both examination reports provided a specific breakdown of the pure tone thresholds at each of the applicable frequencies and did indicate the specific controlled speech discrimination test (Maryland CNC Test) and specifically identified the appropriate percentage score to be used from that testing. Moreover, the private examiner in July 2004 provided the numerical interpretation of the data contained in his audiogram, which clearly comported with the requirements of 38 C.F.R. § 4.85. See 38 C.F.R. § 3.326(b) (2012) (Provided that it is otherwise adequate for rating purposes, an examination report from a private institution may be accepted for rating a claim without further examination). On balance, the Board determines that the audiological test results provided in the July 2004 private report and in the September 2004 VA report are of equal probative value. Further, there is no medical opinion evidence that the September 2004 VA findings show that the Veteran did, in fact, sustain material improvement. Indeed, this was not one of the potential reasons offered by the November 2009 examiner (or in his April 2010 addendum) for the different findings over a period of time consisting of less than 4 months. In light of the above findings, the Board finds that the Veteran's bilateral hearing loss did not warrant a compensable rating prior to the July 2004 private examination. Significantly, moreover, the Board finds that the probative evidence of record for the period beginning on July 15, 2004, is at least in equipoise. Therefore, by resolving all reasonable doubt in favor of the Veteran, the Board concludes that the record, as discussed above, demonstrates that the evidence is in relative equipoise and therefore, the Board finds that an initial 50 percent disability rating, but not higher, for the Veteran's service-connected bilateral hearing loss from July 15, 2004 to November 1, 2009 is warranted. ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss, prior to July 15, 2004, is denied. Entitlement to an initial disability rating of 50 percent for bilateral hearing loss, from July 15, 2004 to November 1, 2009, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs