Citation Nr: 1327115	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  12-05 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent for service-connected hearing loss disability from March 19, 2013.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Tresa M. Schlecht, Counsel 



INTRODUCTION

The Veteran had active service from April 1953 to January 1955.  This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board Remanded the issue listed on the title page of this decision in June 2013.  

The Veteran requested a Videoconference hearing before the Board.  The requested hearing was conducted by the undersigned Veterans Law Judge in February 2013.  


FINDINGS OF FACT

1.  A March 2013 audiometric test was not conducted using the Maryland CNC test for word recognition.

2.  The appeal was remanded in June 2013 to afford the Veteran an opportunity to have a VA examination which would be complete for rating purposes.

3.  The Veteran, without explanation, failed to report for VA examination scheduled in July 2013, and has not requested that the examination be rescheduled.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for bilateral hearing loss from March 13, 2013, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.655, 4.85, Diagnostic Code 6100 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this case, the Veteran seeks an increased, staged, rating in excess of 10 percent from March 2013 following an initial grant of service connection for hearing loss disability.  Regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655 , as appropriate.  38 C.F.R. § 3.655(a) (2012). 

Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  38 C.F.R. § 3.655(a).  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied.  Id.  

In this case, the Board considers the Veteran's contention that he is entitled to an initial rating in excess of 10 percent after March 13, 2013, a claim for an increased rating.  The law provides that when a claimant fails to appear for a scheduled reexamination in connection with a claim for an increased rating, the claim for the increased rating must be denied, unless the appellant has good cause for his failure to appear.  

At his February 2013 hearing, the Veteran testified that he was seeking re-examination of his hearing.  The Appeals Managment Center (AMC) notified the Veteran in June 2013 that the Denver VA Medical Center had been asked to schedule the Veteran for an examination.  The AMC also notified the Veteran that current VA clinical records failed to show audiologic evaluation after March 19, 2013.  The Veteran was scheduled for audiologic examination in early July 2013.  The Veteran failed to report.  

The VA Medical Center confirmed that the Veteran had been notified of the appointment by phone in June 2013 and that a letter had issued regarding the appointment in June 2013.  The Veteran was notified, in a supplemental Statement of the case (SSOC) issued in July 2013 that he had missed the scheduled VA audiologic examination, and that the claim for an increased rating was denied in the absence of evidence which might have been obtained form that examination.  The Board notes that the address used by the VA Medical Center for sending the notice of the appointment and the address to which the SSOC were issued were the Veteran's last known address of record.  

As the Veteran failed to report for VA examination in July 2013, and has not requested that the examination be rescheduled, and has not provided an explanation of the failure to report, and no good cause for failure to report is shown in the record, the claim must be denied.  Furthermore, as the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  In such a case, discussion of the actions taken to meet VA's duties to notify and assist the Veteran is not required.  

Even if the claim were considered an original claim and adjudicated based on the evidence of record, the weight of the evidence remains against the claim for a rating in excess of 10 percent for the period from March 19, 2013.  The Veteran's March 2013 audiometric test shows the Veteran had level V hearing in his right ear and level IV hearing in his left ear, with a 72 percent word recognition for the right ear and 80 percent word recognition for the left ear.  The examiner stated that the hearing thresholds were stable, but speech recognition had declined.  The results of the March 2013 examination warrant a 10 percent evaluation, but no higher evaluation, for hearing loss disability.

However, the Board noted that the Veteran's word recognition was tested using the CID (Central Institute for the Deaf) W-22 word recognition list.  VA regulations require that an examination for hearing impairment for VA purposes must include a controlled speech discrimination using the Maryland CNC word recognition test and a puretone audiometry test.  38 C.F.R. § 4.85.  Because the testing did not conform to that required for VA rating purposes, the claim was Remanded and the Veteran was afforded another opportunity to be examined.  As explained above, the Veteran did not appear for a new examination to include proper speech recognition testing.  Nonetheless, if the claim were rated based on the evidence of record, an evaluation in excess of 10 percent would still not be warranted.  

In March 2013, the Veteran underwent VA audiologic examination.  That examination disclosed the following:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
45
40
60
65
53
LEFT
40
45
65
70
55

Disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after eudiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In this case, as the speech recognition scores in this case cannot be applied to the rating code under 38 C.F.R. § 4.85, Table VI, the Board will use Table VIa to rate hearing impairment based only on puretone threshold average.  While this table is normally for application only in cases of exceptional patterns of hearing impairment under 38 C.F.R. § 4.86, the Board will apply it here to afford the Veteran all reasonable doubt.  Mechanical application of the results to table VIa of the March 2013 hearing test to the auditory acuity levels provided by regulation, where there a puretone threshold average of 53dB loss in the right ear and puretone threshold average of 55 in the left ear, results in level III hearing for each ear.  

Applying these results to the Table VII chart, a level III for the right ear combined with a level III for the left ear will result in a 0 percent rating.  Thus, the preponderance of the evidence, if the claim is adjudicated on the merits despite the Veteran's failure to report, is against an evaluation in excess of 10 percent for hearing loss disability from March 19, 2013.  The Board does not concede that the claim should, under the governing law, be adjudicated on the merits.  However, if the claim were adjudicated on the merits, the appeal would still be denied.  The Board also notes that all duties to the Veteran, including duties under the VCAA and the duties of the hearing officer who conducted the 2013 Videoconference hearing, have been met.  Moreover, there has been compliance by VA with the June 2013 Remand.  Stegall v. West, 11 Vet. App. 268 (1998).

The appeal for an evaluation in excess of 10 percent for hearing loss disability from Mach 19, 2013, must be denied. 


ORDER

The appeal is denied.  




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs