Citation Nr: 1328014 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 13-13 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable initial disability rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from April 1944 to December 1946 and January 1953 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2013, the Veteran submitted a statement raising the issue that he has cancer as a result of handling of nuclear components while in service and exposure to Agent Orange while in Vietnam. A claim for service connection for cancer, claimed as due to exposure to nuclear radiation and herbicides, has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. The Veteran's hearing loss in the right ear is productive of a puretone threshold average no higher than 40 decibels with speech recognition ability of 88 percent. 2. The Veteran's hearing loss in the left ear is productive of a puretone threshold average no higher than 42.5 decibels with speech recognition ability of 98 percent. CONCLUSION OF LAW The criteria for a compensable initial disability rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.85, Diagnostic Code 6100 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in November 2010, prior to the initial adjudication of his claim for service connection. The Board notes that the Veteran's claim was originally one for service connection for his hearing loss, which was granted in the April 2011 rating decision. Thereafter, the Veteran disagreed with the evaluation of this now service-connected disability. Consequently, since the Veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify him was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency in providing notice relating to the Veteran's appeal for an increased rating is not prejudicial to him. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). VA treatment records were obtained from 1999 to 2010. The Board notes that a September 2010 VA audiology consultation note indicates the Veteran underwent an audiogram; however, the audiogram results, which are on a separate display, were not printed out and included with the VA treatment records. The Board finds, nevertheless, that there is no prejudice to the Veteran in not obtaining the exact results of the audiogram because the speech recognition testing was not performed using the Maryland CNC word list as required by regulation. See 38 C.F.R. § 4.85(a). Thus, the Board finds that the audiogram results would not be adequate for evaluating the Veteran's bilateral hearing loss. Consequently the Board finds that reasonable efforts have been made to obtain relevant, identified and available evidence, and the Veteran will not be prejudiced by the Board proceeding to adjudicate his claim. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examination in March 2011. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The report of the examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that he is entitled to a compensable disability rating for his service-connected bilateral hearing loss. In a September 2011 "Report of General Information," it was noted that, during a telephone call, the Veteran stated that "he wanted true service connection, the maximum he could get, 100%." In June 2013, the Veteran submitted a statement in which he stated he felt that "VA decided my case incorrectly due to evidence including my physical from my retirement from service dated Sept. 30, 1974. This exam includes an auditor (sic) test showing hearing loss. I am including my retirement exam and two letters from doctors that show additional loss due to flying B17's in WWII. I feel my rating for hearing loss should be more than 0%." The Veteran's hearing loss is rated under 38 C.F.R. § 4.85, Diagnostic Code 6100. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI and Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000 Hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. The assignment of a rating for hearing loss is achieved 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). In September 2010, the Veteran underwent audiology consultation at VA. At that time, his chief complaint was "difficulties hearing and understanding and blocked ears, right ear is worse than left ear." Military noise trauma was noted to have included jet engines and weapon firing without hearing protection. He denied any post-service occupational noise exposure. Physical examination of the ears was normal. As previously indicated, the audiogram test results are not part of the record; however, it is noted that speech recognition scores were 92 percent in the right ear and 88 percent in the left ear using the W-22 word list. The assessment was bilateral sensorineural hearing loss. As previously discussed, the regulation provides that speech recognition testing should be conducted using the Maryland CNC word list. See 38 C.F.R. § 4.85(a). Since the VA audiology consultation note clearly indicates that the W-22 word list was used to test speech recognition, the Board finds that this examination is not adequate for rating purposes as it does not comply with the VA requirement of the use of the Maryland CNC word list. Consequently, the Board need not utilize this audiology examination in evaluating the Veteran's service-connected hearing loss for determining what disability rating should be assigned thereto. In March 2011, the Veteran underwent a VA audiology examination. The examiner noted the audiometric test results from in service from 1952 and 1971 through 1974. She also noted the September 2010 VA audiology consultation note. At this time, the Veteran's main complaint was "a bilateral hearing loss noticed in the past year, but he states he was told 'not to get a stereo' when he got out of service, due to his hearing." Military noise exposure was noted. He denied occupational noise exposure but stated had done some woodworking, not always with ear protection. On the audiometric evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 25 45 40 50 40 LEFT 25 50 40 55 42.5 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 88 percent in the right ear and of 98 percent in the left ear. The assessment was sensorineural hearing loss moderate to moderately severe from 2000 to 4000 Hertz. The examiner noted that the disability's effect on occupation is that the Veteran "has difficulty understanding in most situations." No effects on usual daily activities were noted. When applying these findings to Table VI, the numeric designations of the Veteran's hearing impairment for the right ear is II and for the left ear is I. Applying those numeric designations to Table VII, the result shows the Veteran is only entitled to a zero percent evaluation for his bilateral hearing loss. A compensable disability rating under the schedular rating criteria is, therefore, not warranted. The Board must also consider whether referral for an extraschedular consideration is warranted under 38 C.F.R. § 3.321(b). A rating in excess of the assigned schedular evaluations for the Veteran's service-connected disabilities addressed herein on the merits may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. See Floyd v. Brown, 9 Vet. App. 88 (1996). The Court additionally held that the Board must address referral under § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. See Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). The Court has further held that VA was within its discretion to interpret § 3.321(b)(1) as limiting consideration for extraschedular ratings to individual service-connected disabilities and not to multiple service-connected disabilities on a collective basis. See Johnson v. Shinseki, 26 Vet. App. 237, 241-45 (2013). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that there is no evidence that the Veteran's service-connected bilateral hearing loss has presented such an unusual or exceptional disability picture at any time so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). The criteria of the applicable Diagnostic Code adequately contemplate his present level of impairment caused by his hearing loss as discussed above. The clinical evidence does not show that the disability picture created by the service-connected hearing loss is exceptional or unusual. The Veteran has never voiced any symptoms or effects of his bilateral hearing loss that are exception or unusual. In fact, his main complaint is difficulty understanding, which is consistent with the level of his hearing loss. The Board notes that, on examination in both September 2010 and March 2011, tympanometry was abnormal as were his reflexes. There is no indication in either record, however, that these findings are not reflected in the audiometric test results or cause any additional functional impairment not contemplated by the rating criteria for evaluating hearing loss. Consequently, the Board finds that the evidence fails to establish that VA's rating schedule is inadequate to fully compensate the Veteran's service-connected bilateral hearing loss. The preponderance of the evidence is, therefore, against finding that referral for extraschedular consideration is warranted. In conclusion, the Board finds that the preponderance of the evidence is against finding that a compensable disability rating for service-connected bilateral hearing loss is warranted. In making this determination, the Board has considered the Veteran's arguments, along with the two medical statements he submitted; however, it finds that they are not relevant to the inquiry that is presently before the Board. Although the Board acknowledges the Veteran's more than 26 years of active military service as a pilot, the Veteran had been discharged from service 35 years at the time he filed his claim for service connection for hearing loss in 2010. Furthermore, although the circumstances of the Veteran's service and his noise exposure therein is relevant to the claim for service connection, the issue in a claim for an increased disability rating is what is the current severity of the service-connected disability. Hence, what happened in service more than 35 years ago is not so relevant in determining what is the current severity of the disability than are the Veteran's statements of how his hearing loss is currently affecting him and the medical evidence showing the level of disability. Consequently, although the Board is appreciative of the Veteran's many years in active military service as a pilot, it cannot find that such information is relevant evidence 35 years later in determining the severity of the his hearing loss and what is the appropriate disability rating to be assigned to it. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs