Citation Nr: 1325079 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 06-37 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating prior to April 8, 2008 for bilateral hearing loss. 2. Entitlement to an initial disability rating greater than 10 percent beginning April 8, 2008 for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from May 1960 to September 1964, from November 1965 to September 1968, and from April 1990 to December 1992. These matters come to the Board of Veterans' Appeals (Board) from a September 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2011 a Board hearing was held at the RO before a Veterans Law Judge; the transcript is of record. In May 2012 a letter was sent to the Veteran informing him that the Veterans Law Judge who held the February 2011 hearing was no longer employed by the Board. The Veteran was offered another hearing before another Veterans Law Judge. No response was received and the Veteran is presumed not to want a new hearing. In May 2011 and August 2012, the Board remanded the claim for further development. The issue of entitlement to an initial rating greater than 10 percent beginning April 8, 2008, for bilateral hearing loss being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to April 8, 2008, the Veteran's bilateral hearing loss was manifested by, at worst, level I hearing on the right and level I hearing on the left, CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss, prior to April 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). Duties to Notify and Assist The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed . Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional records pertinent to the appeal, prior to April 8, 2008. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in February 2005 and April 2008; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examination reports reflect objective findings and the opinions are based on reliable principles and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85 (2012). The results are analyzed using tables contained in 38 C.F.R. § 4.85, Diagnostic Code 6100. Separate diagnostic codes identify the various disabilities. 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. Separate ratings for distinct periods of time, based on the facts are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established 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. 38 C.F.R. § 4.86(a) provides that 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. The provisions of 38 C.F.R. § 4.86(b) provide that 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis This matter stems from the appeal of an initial 0 percent disability evaluation assigned for bilateral hearing loss following the grant of service connection in a September 2005 rating decision. Prior to April 8, 2008, a noncompensable evaluation is assigned. VA audiologic evaluation performed in February 2005 showed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 45 55 LEFT 20 25 50 70 Average pure tone threshold was 35 decibels on the right and 41 decibels on the left. Discrimination ability was 94 percent in the right ear and 96 percent in the left ear. The results of the February 2005 VA examination constitute level I hearing on the right and level I hearing on the left. When combined, the result is a 0 percent disability evaluation. 38 C.F.R. § 4.85 (2012). The findings do not show an exceptional pattern of hearing impairment and as such, 38 C.F.R. § 4.86 is not for application. 38 C.F.R. §§ 4.85, 4.86; Diagnostic Code 6100 (2012). The Veteran is competent to report his symptoms and the Board accepts that he has difficulty hearing, and particularly with speech in a noisy environment, as noted in the VA examination report. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The competent, objective evidence, however, does not establish that a compensable evaluation is warranted, prior to April 8, 2008. To the extent that interference with employment has been asserted due to hearing loss, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Based on the reported results of audiologic evaluation, there is no evidence that the Veteran's bilateral hearing loss more nearly approximates to the criteria for a compensable evaluation at any time during the appeal period, prior to April 8, 2008. The preponderance of the evidence is against the claim for a compensable evaluation for hearing loss, prior to April 8, 2008; there is no doubt to be resolved. Prior to April 8, 2008, a compensable rating for bilateral hearing loss is not warranted. The evidence shows that the Veteran's service-connected bilateral hearing loss results in level I hearing on the right and level I hearing on the left; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected bilateral hearing loss disability is adequate prior to April 8, 2008, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER An initial compensable disability rating for bilateral hearing loss, prior to April 8, 2008, is denied. REMAND The Veteran asserts entitlement to a rating higher than 10 percent for bilateral hearing loss, since April 8, 2008. In accordance with the Board's remand in August 2012, VA audio treatment records, dated in March 2011, were associated with the claim file. Although the records reflect a diagnosis of normal sloping to severe sensorineural hearing loss based on a comprehensive hearing evaluation, neither the pure tone thresholds nor the discrimination ability were reported for either ear. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim. See 38 C.F.R. § 3.159(c)(2). Based on the above, along with the Veteran's statements and the evidence since the most recent October 2011 VA examination, the Veteran is to be afforded a VA examination to determine the current severity of his bilateral hearing loss, since April 8, 2008. Accordingly, the case is REMANDED for the following action: 1. Obtain the test results of the March 2011 VA hearing evaluation and associate the records with the claim file. 2. Schedule the Veteran for a VA hearing examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs