Citation Nr: 1325056 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-07 034 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded this claim for additional development in February 2012. FINDING OF FACT For the entire appeal period at issue, the Veteran's hearing loss was manifested by no worse than level II hearing in the right ear and level II hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.85, 4.86 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 of 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 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). Specifically, the Veteran was notified in letters dated in May 2007, August 2007, February 2008, and February 2012. 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) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012). The Veteran claims that his service-connected hearing loss warrants a compensable rating. The Veteran's service medical records do not show any complaints, findings, or treatment for hearing loss. Audiometric testing performed in May 1967, September 1970, and April 1971 revealed normal hearing with a standard threshold shift in hearing thresholds noted from entrance to separation. At a VA audiological examination in November 2007, audiometric testing revealed puretone thresholds, in decibels, for the right ear of 20 at 1000 Hertz, 35 at 2000 Hertz, 60 at 3000 Hertz, and 60 at 4000 Hertz with an average decibel loss of 44. Puretone thresholds, in decibels, for the left ear were 10 at 1000 Hertz, 40 at 2000 Hertz, 55 at 3000 Hertz, and 60 at 4000 Hertz with an average decibel loss of 41. Speech testing revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. At a VA audiological examination in June 2008, audiometric testing revealed puretone thresholds, in decibels, for the right ear of 20 at 1000 Hertz, 40 at 2000 Hertz, 55 at 3000 Hertz, and 55 at 4000 Hertz with an average decibel loss of 43. Puretone thresholds, in decibels, for the left ear were 15 at 1000 Hertz, 45 at 2000 Hertz, 55 at 3000 Hertz, and 65 at 4000 Hertz with an average decibel loss of 45. Speech testing revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. At a VA audiological examination in August 2009, audiometric testing revealed puretone thresholds, in decibels, for the right ear of 20 at 1000 Hertz, 40 at 2000 Hertz, 60 at 3000 Hertz, and 60 at 4000 Hertz with an average decibel loss of 45. Puretone thresholds, in decibels, for the left ear were 20 at 1000 Hertz, 45 at 2000 Hertz, 60 at 3000 Hertz, and 60 at 4000 Hertz with an average decibel loss of 46. Speech testing revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. VA treatment reports dated from September 2007 to April 2012 show that the Veteran reported hearing difficulties in January 2009. He was diagnosed with bilateral sensorineural hearing loss with good speech recognition. In February 2012, the Veteran was seen for a report of trouble with his hearing aids. At a VA audiological examination in February 2012, audiometric testing revealed puretone thresholds, in decibels, for the right ear of 25 at 1000 Hertz, 50 at 2000 Hertz, 70 at 3000 Hertz, and 75 at 4000 Hertz with an average decibel loss of 55. Puretone thresholds, in decibels, for the left ear were 20 at 1000 Hertz, 50 at 2000 Hertz, 65 at 3000 Hertz, and 70 at 4000 Hertz with an average decibel loss of 51. Speech testing revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. In a May 2012 addendum opinion, another VA audiological examiner indicated that the Veteran's service-connected hearing loss would cause no significant impact on daily living and would not hinder his ability to maintain sedentary or physical employment. The audiologist noted that while some occupations have hearing requirements such as law enforcement, firefighting, and pilots, the Veteran worked after service in a printing press. Ratings for defective hearing range from 0 percent 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 as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I, for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012). When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a) (2012). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. That numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2012). A review of the November 2007 audiometric examination, and using the speech discrimination scores from the audiogram, correlates to level I hearing in the right ear and level I in the left ear. 38 C.F.R. § 4.85, Table VI (2012). Neither the Veteran's right or left ear qualifies as an exceptional pattern of hearing loss. 38 C.F.R. § 4.86 (2012). The combination of level I and level I corresponds to a 0 percent disability rating. 38 C.F.R. § 4.85, Table VII (2012). The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In the Veteran's case, that results in a 0 percent rating. A review of the June 2008 audiometric examination, and using the speech discrimination scores from the audiogram, correlates to level I hearing in the right ear and level I in the left ear. 38 C.F.R. § 4.85, Table VI (2012). Neither the Veteran's right or left ear qualifies as an exceptional pattern of hearing loss. 38 C.F.R. § 4.86 (2012). The combination of level I and level I corresponds to a 0 percent disability rating. 38 C.F.R. § 4.85, Table VII (2012). The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In the Veteran's case, that results in a 0 percent rating. A review of the August 2009 audiometric examination, and using the speech discrimination scores from the audiogram, correlates to level II hearing in the right ear and level II in the left ear. 38 C.F.R. § 4.85, Table VI (2012). Neither the Veteran's right or left ear qualifies as an exceptional pattern of hearing loss. 38 C.F.R. § 4.86 (2012). The combination of level II and level II corresponds to a 0 percent disability rating. 38 C.F.R. § 4.85, Table VII (2012). The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In the Veteran's case, that results in a 0 percent rating. A review of the February 2012 audiometric examination, and using the speech discrimination scores from the audiogram, correlates to level I hearing in the right ear and level I in the left ear. 38 C.F.R. § 4.85, Table VI (2012). Neither the Veteran's right or left ear qualifies as an exceptional pattern of hearing loss. 38 C.F.R. § 4.86 (2012). The combination of level I and level I corresponds to a 0 percent disability rating. 38 C.F.R. § 4.85, Table VII (2012). The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In the Veteran's case, that results in a 0 percent rating. Consequently, based on the results of the examinations of record, the Board concludes that the Veteran's bilateral hearing loss is consistent with no more than a 0 percent rating for the entire appeal period at issue. The evidence does not support the assignment of a rating higher than 0 percent for hearing loss. The Board has considered whether an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding on the part that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2012). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2012). The Board finds that referral is not appropriate in this case. While the Board concedes that the Veteran's hearing loss may have a negative impact on his ability to work, that disability has not been shown to markedly interfere with employment beyond that contemplated in the assigned rating, to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards and in fact the most recent VA examiner indicated that the Veteran's hearing loss would not hinder his ability to maintain sedentary or physical employment. The schedule provides for higher ratings for hearing loss, but the evidence does not show that the Veteran's hearing loss meets the criteria for any higher rating, or that any other functional loss would more nearly approximate those criteria. Additionally, the record does not show that the disability results in frequent periods of hospitalization. Therefore, the Board finds that referral for consideration of an extraschedular rating are not met. 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals