Citation Nr: 1328632 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-24 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for bilateral hearing loss and assigned a noncompensable disability rating effective April 9, 2009. The Veteran appealed for an initial higher rating. He has since relocated to the jurisdiction of the Phoenix, Arizona RO. In October 2011, the Veteran withdrew his request for a hearing before the Board. 38 C.F.R. § 20.704(e). 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 The Veteran's bilateral hearing loss is manifested by no worse than a Level II impairment of auditory acuity in the right ear and a Level I impairment of auditory acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss were not met. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in an April 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The present case involves a "downstream" issue, as the initial claim for service connection was granted in the rating decision on appeal, and the Veteran disagrees with the evaluation assigned. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. In such a case, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also 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, normally falls upon the party attacking the agency's determination). As the Veteran has not alleged any prejudice, that burden has not been met. Accordingly, the Veteran is not prejudiced by a decision on the appeal, regardless of the timing or content of the notice provided by the RO. Moreover, the claim was readjudicated in the February 2013 supplemental statements of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, and Virtual VA records have been obtained. In addition, he has been provided with appropriate VA examinations in connection with the claim which sufficiently describe the manifestations of the Veteran's claimed disabilities for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, he has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Higher Rating Service connection for bilateral hearing loss was established by a July 2009 rating decision by the RO, which granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating effective April 9, 2009. The Veteran appealed for a higher rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Evaluations of bilateral defective hearing 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 the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The evaluation of hearing impairment applies a rather structured formula that is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In June 2009, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 20, 45, 50, and 90; and in the left ear were 30, 40, 45, and 60. The puretone threshold average in the right ear was 51 decibels and the average in the left ear was 44 decibels. Speech discrimination was 90 percent in the right ear and 92 percent in the left ear. Applying the results to Table VI, the findings of the June 2009 VA examination yield a numerical designation of Level II for the right and Level I in the left ear. 38 C.F.R. § 4.85 (2012). When hearing loss is Level II in one ear and Level I in the other, a 0 percent evaluation is assigned under Table VII. Id. Therefore, the Board finds that a compensable rating is not warranted based on that examination. The June 2009 audiological testing did not show that the pure tone threshold at all four specified frequencies 1000, 2000, 3000, and 4000 Hertz was 55 decibels or more, nor that a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Thus an exceptional pattern of hearing impairment is not shown. 38 C.F.R. § 4.86 (2012). In January 2013, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz in the right ear were 30, 45, 50, and 85; and in the left ear 35, 35, 40, and 60. The puretone threshold average in the right ear was 52 and the average in the left ear was 42. Speech discrimination was 100 percent in the right ear and 96 percent in the left ear. Applying the results to Table VI, the findings of the January 2013 VA examination yield a numerical designation of Level I for the right ear and Level I for the left ear. 38 C.F.R. § 4.85 (2012). When hearing loss is Level I in both ears, a 0 percent evaluation is assigned under Table VII. Id. Therefore, the Board finds that a compensable rating was not warranted based on that examination. Audiological testing during did not show that the pure tone threshold at all four specified frequencies 1000, 2000, 3000, and 4000 Hertz was 55 decibels or more, nor that a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. Thus an exceptional pattern of hearing impairment is not shown. 38 C.F.R. § 4.86 (2012). The Board is cognizant of the Veteran's contentions concerning his difficulty in hearing, and he described the functional impact of such to the VA examiners. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In this regard, the 2009 examiner reported the Veteran's complaints of hearing female voices or soft voices and hearing in groups or where there is background noise. The 2013 VA examination noted the Veteran's reported functional impact as having difficulty hearing his wife, difficulty with hearing when there is background noise and that he cannot have the radio on and hear a conversation. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. The audiological results during the course of the claim were conducted in accordance with 38 C.F.R. § 4.85(a) and fail to show hearing loss which would be compensable under the rating criteria during any portion of the appeal period. Accordingly, a noncompensable rating is appropriate for the entire period of the Veteran's appeal. See Fenderson, supra. As a final matter, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial compensable rating for hearing loss is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs