Citation Nr: 1329090 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-39 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the VA Regional Office (RO) in Atlanta, Georgia. In October 2011, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The case was remanded in January 2012 to provide the Veteran with notification as to how disability ratings are assigned, obtain additional treatment records and afford him a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the last supplemental statement of the case (SSOC), additional evidence has been added to the Veteran's Virtual VA claims folder, without a waiver, in the form of medical records. Normally, absent a waiver from the Veteran, a remand is necessary when evidence is received by the Board that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, the records are not pertinent to the issue on appeal as they do not show findings applicable to the appropriate rating criteria. Consequently, a remand is not necessary. The additional treatment records show that the Veteran has diabetes mellitus, type II. A review of his DD 214 shows that he had service in the Republic of Vietnam; in the rating decision on appeal, the RO conceded the Veteran's service in the Republic of Vietnam when granting service connection for bilateral hearing loss. As per 38 C.F.R. § 3.309(e), diabetes mellitus, type II is a disability presumptively associated with herbicide exposure. As the Veteran's exposure to herbicides is conceded due to his service in the Republic of Vietnam, the issue of service connection for diabetes mellitus, type II being referred has been raised by the record, but 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. FINDING OF FACT Audiometric testing reveals no worse than Level I hearing acuity in the Veteran's right ear and Level II hearing acuity in his 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. §§ 3.159, 4.3, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in letters dated in February 2006 and January 2012 regarding the type of evidence necessary to establish his claim. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. In addition, the January 2012 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's claim for a higher initial rating for his bilateral hearing loss arises from his disagreement with the initial rating following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, the January 2012 letter informed the Veteran of the criteria for assigning a disability rating. See Dingess/Hartman, 19 Vet. App. 473. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records, and also secured examinations in furtherance of his claims. Pertinent fee-based and VA examinations were obtained in December 2006 and February 2012, respectively. 38 C.F.R. § 3.159(c)(4). The examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining examinations concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Id. A distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two ratings should 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. 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 puretone audiometry test. See 38 C.F.R. § 4.85. The results are then analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. "Puretone threshold average,'' as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. The appropriate rating is then determined by finding the intersection point for the two Roman numeral designations using Table VII. For exceptional patterns of hearing impairment, 38 C.F.R. § 4.86 provides as follows: (a) When the puretone 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. Each ear will be evaluated separately. (b) When the puretone 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. The average pure tone hearing loss on a fee-based audiological evaluation in December 2006 was 32 decibels in the right ear and 40 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 98 percent in the right ear and 94 percent in the left ear. An exceptional pattern of hearing loss was not shown. The Veteran reported having decreased hearing ability in both ears. Subjective factors included difficulty understanding speech. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score also received a numeric designation of Level I. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. The Veteran submitted a VA audiology treatment record dated in April 2008. The audiometric findings shown did not include results for testing at 3000 Hertz. As such, the Veteran's puretone threshold average cannot be calculated as it is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. Additionally, the record shows that speech discrimination scores did not use the Maryland CNC test, but instead used the recorded NU-6 test. Therefore, the Board finds that the results of this audiological evaluation cannot be used for rating purposes. At his October 2011 hearing, the Veteran testified that he felt that the December 2006 examination was adequate. October 2011 Hearing Transcript (T.) at 3. He testified that he worked for an airline in the flight control office and that he had to stand next to people to speak to them or telephone them because he had volume control on the telephone. Id. His hearing loss caused problems in the theaters and his personal life. Id. The Veteran testified that he had trouble understanding people in crowds and with background noise. Id. at 3-4. He wore hearing aids. Id. at 4. The Veteran testified that his hearing loss encouraged him to be more of a "loner" as people got tired of repeating themselves. Id. He testified that when he slept on his right side, he could not hear his alarm going off. Id. at 7. The Veteran's daughter reportedly yelled and screamed at him due to the volume on the television being so loud. Id. The average pure tone hearing loss on a VA audiological evaluation in February 2012 was 44 decibels in the right ear and 58 decibels in the left ear. Speech recognition scores using the Maryland CNC word lists were 92 percent in the right ear and 92 percent in the left ear. An exceptional pattern of hearing loss was not shown. His hearing loss impacted his conditions of daily life, including the ability to work. The Veteran reported having difficulty discriminating sounds and hearing others. He reported that he was known as the sector manager that could not hear at work. He reported that due to his hearing difficulties, it was difficult for him to participate in situational awareness in the operational control center. He also reported that he had trouble hearing his alarm clock when sleeping on the right side and having trouble hearing his wife and the television at home. Pursuant to 38 C.F.R. 4.85, Table VI with regards to the Veteran's right ear, his pure tone threshold average and speech discrimination score received a numeric designation of Level I. Turning to the Veteran's left ear, the foregoing pure tone threshold average and speech discrimination score received a numeric designation of Level II. Applying the numeric designations to 38 C.F.R. 4.85, Table VII, the Veteran was entitled to a noncompensable rating under DC 6100. Therefore, a compensable rating is not warranted based on these results. Here, the Veteran has been awarded a noncompensable rating since the award of service connection. For the reasons set forth above, the evidence does not show that he is entitled to an initial compensable rating for bilateral hearing loss at any time since the award of service connection based on the standard rating criteria. 38 C.F.R. § 4.85, DC 6100. Therefore, his initial rating claim is denied. The above determination is based upon consideration of applicable rating provisions. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the Veteran reported functional impairment in difficulty understanding speech at the December 2006 examination. At the February 2013 examination, the Veteran reported functional impairment both at work and at home as detailed above. As the February 2012 examination described the functional effects of the Veteran's bilateral hearing loss disability, as the Veteran reported his functional effects in December 2006 and February 2012, and as the Veteran has not demonstrated any prejudice caused by a deficiency in any examination, the Board reiterates that the evidence does not support a finding of a compensable rating at any time during this appeal. The evidence does not show that the Veteran's bilateral hearing loss has resulted in marked interference with employment or activities of daily life. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's bilateral hearing loss warrants a compensable schedular rating at any time since the award of service connection. The Board finds, therefore, that the evidence of record does not support the criteria required for a compensable schedular rating at any time since the award of service connection. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's bilateral hearing loss symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's bilateral hearing loss has resulted in interference with employment or activities of daily life which would warrant a compensable rating for this disability. Moreover, as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs