Citation Nr: 1329100 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-37 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to August 1987. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a videoconference hearing before the Board. 38 C.F.R. § 20.700(e). The RO resultantly sent him a letter in October 2009 indicating his hearing had been scheduled for November 6, 2009, but he was a no show. He has not offered any explanation or good cause for his failure to report for his hearing or asked to reschedule the hearing, so the Board deems his hearing request withdrawn. 38 C.F.R. § 20.704(d). Although the RO did not certify this claim for an increased rating for the bilateral hearing loss to the Board, the Board finds that the Veteran's December 2007 statement in support of claim (on VA Form 21-4138), in response to the November 2007 statement of the case (SOC), is a timely substantive appeal concerning this claim to complete the steps necessary to perfect his appeal of this claim to the Board. 38 C.F.R. §§ 20.200, 20.202, 20.302 (2011). The Board issued a decision in October 2011 granting another claim the Veteran also had appealed to the Board - for an effective date earlier than January 1, 2007, for payment of additional compensation benefits for a dependent spouse. The Board made the effective date, instead, retroactive to September 1, 1987. But regarding this remaining claim for a higher rating for the bilateral hearing loss, rather than immediately deciding this other claim, the Board instead remanded this claim to the RO via the Appeals Management Center (AMC) to provide the Veteran corrective Veterans Claims Assistance Act (VCAA) notice, to develop evidence, to provide a VA compensation examination reassessing the severity of this disability, and then for readjudication of this claim. FINDING OF FACT At worst, the Veteran has Level I hearing loss in his right ear and Level III hearing loss in his left ear. CONCLUSION OF LAW The criteria are not met for a compensable rating, meaning a rating higher than 0 percent, for the bilateral hearing loss. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim upon receipt of a complete or substantially complete application. These VCAA notice requirements apply to all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 438 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in an SOC or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U.S. Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each individual case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit Court's framework (see Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id. at 1704. The Supreme Court rejected the Federal Circuit Court's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party - to show the error was harmful. Id. at 1704-05. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id. at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while a Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error nonetheless must be examined in the context of the facts of the particular case. Id. The Veterans Court (CAVC) initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim...served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the Veteran, the Court nonetheless determined that the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). The Court further held in Vazquez-Flores v. Peake that, for increased-compensation claims, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate the claims, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life. On appeal, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the Federal Circuit Court vacated and remanded important aspects of the Court's holding in Vazquez- Flores, as well as a related case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly, the Federal Circuit Court concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "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 Court held, "insofar as the notice described by the [Court] in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." Vazquez, 580 F.3d at 1277. Here, the Veteran's claim was remanded in October 2011, in part, due to defective VCAA notice. And, on remand, the AMC provided additional notice comporting with Dingess, Mayfield, and Vazquez-Flores, specifically in that it states that to support the Veteran's claim, "medical or lay evidence must show a worsening or increase in severity [of the disability] and the effect that worsening or increase has on your employment and daily life." After further evidentiary development, the Veteran submitted a VCAA Notice Response in November 2011 indicating he had submitted all remaining evidence in support of his claim and that VA should decide his claim as soon as possible. So upon completion of the additional VA compensation examination that the Board also directed the Veteran undergo on remand, the AMC sent him an SSOC addressing this additional evidence, albeit continuing to deny his claim. Thus, the Board finds that the duty to notify has been satisfied. To satisfy its duty to assist, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim, unless there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. This includes assisting the claimant in obtaining necessary medical examinations and opinions. Id. In the disability-rating context, once service connection for the disability has been established, this may include having the Veteran reexamined to reassess the severity of his disability - especially if he alleges a worsening of his disability since it was last rated or examined. See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, when a Veteran claims that a disability is worse than when originally rated or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (VA must consider the history of the disability). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See also VAOPGCPREC 11-95 (April 7, 1995). There is no requirement, however, to have the Veteran reexamined merely because of the passage of time since an otherwise adequate examination. Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In this case, the Board concludes that the duty to assist has been met. The Veteran's service treatment records (STRs) have been obtained, also his post-service VA and private treatment records. Additionally, he was provided two VA compensation examinations. An October 2007 examination was performed shortly after he had initiated his increased-rating claim. A more recent examination was provided in February 2012 following and as a result of the Board remanding this claim in October 2011. Both examiners reviewed the Veteran's claims file before rendering their opinions regarding the severity of his hearing loss disability. The reports of these VA compensation examinations, especially when considered along with the other relevant evidence in the file, provide the information needed to properly rate the Veteran's hearing loss disability according to the criteria found in 38 C.F.R. § 4.85, DC 6100 (2012). Thus, additional examination of this disability is not needed. See 38 C.F.R. § 3.327(a). The RO/AMC also sought and received clarification regarding a private audiological examination report, which was one of the directives of the remand. Since there is no indication that any relevant evidence is still outstanding, the Board is proceeding with its consideration of this claim. II. Merits of the Claim The RO granted service connection for bilateral hearing loss in May 1988, assigning an initial 0 percent rating retroactively effective from September 1, 1987. The Veteran contends that he is now entitled to a higher rating for his disability because his hearing loss has gotten progressively worse over the years since he was granted service connection for it, even purportedly preventing him from advancing in the recruitment process for a job with United States Customs. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 4.2. In determining the present level of disability, however, a "staged" rating is appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability has exhibited symptoms that would warrant different ratings. The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100 (2012). This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched against Table VI to find the numeric designation, and then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of section 4.86 address exceptional patterns of hearing impairment, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86(a) and (b). During the authorized VA audiological evaluation in October 2007, pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz AVERAGE LEFT 10 20 65 75 75 58.75 RIGHT 5 15 60 60 60 48.75 Speech audiometry as determined by the Maryland CNC speech discrimination test revealed speech recognition ability of 92 percent in both ears, so bilaterally. According to Table VI, this level of hearing impairment correlates to a numeric designation of II for the left ear and I for the right ear. The point of intersection on Table VII, in turn, reflects that this level of hearing loss is commensurate with the existing 0 percent rating. An exceptional pattern of hearing impairment was not indicated. During the more recent authorized VA audiological evaluation in February 2012, pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Average LEFT 10 15 65 80 75 80 80 59 RIGHT 5 10 55 55 55 65 65 44 Note that the Average calculation was for the 1000-4000 Hz measurements. Speech audiometry as determined by the Maryland CNC speech discrimination test revealed speech recognition ability of 90 percent in the left ear and 96 percent in the right ear. According to Table VI, this indicates a numeric designation of III for the left ear and I for the right. The point of intersection on Table VII reflects that this level of hearing loss continues to be consistent with the existing 0 percent rating. An exceptional pattern of hearing impairment again was not shown. So as is readily apparent, the results of these two VA compensation examinations do not support the assignment of a higher, i.e., compensable rating for the Veteran's bilateral hearing loss. Apparently to try and refute these VA compensation examiner's findings regarding the extent and severity of his bilateral hearing loss, the Veteran submitted private audiological records dated from 2007 and 2010 from South Florida ENT Associates in support of his claim. However, a February 2012 letter indicated that the speech discrimination test used in 2007 was a "CID auditory test W-22." There is no indication that changed for the subsequent testing in 2010. Thus, these records cannot be used for VA rating purposes since they do not contain results of a Maryland CNC speech discrimination test, which is the specific type of testing required by VA regulation. See 38 C.F.R. § 4.85(a). It also has not been shown the Veteran has had a compensable level of bilateral hearing loss at any time since once year immediately preceding the filing of this increased-rating claim, so the Board cannot "stage" his rating either. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The VA compensation examiners also as required specifically addressed the functional effects of the Veteran's bilateral hearing loss disability on his employment and social and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, unlike the Rating Schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted. VA's policy requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application. Martinak, 21 Vet. App. at 455. So in reaching this decision, the Board also has considered whether an extra-schedular rating is warranted. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that there is no basis for further action on this question, however, as there is no indication of an exceptional disability picture such that the scheduler evaluation for the Veteran's service-connected bilateral hearing loss is inadequate. His level of hearing loss is fully contemplated by the objective standards of the applicable code, DC 6100. Indeed, he does not have even the exceptional pattern of hearing impairment that would invoke consideration of 38 C.F.R. § 4.86(a) and (b). Furthermore, there is no objective evidence of record suggesting his service-connected disability markedly interferes with his employment, that is, above and beyond that contemplated by the schedular rating assigned for this disability, or as an additional example requires frequent hospitalization. 38 C.F.R. §§ 4.1, 4.15. He claims that his hearing loss disability prevented him from advancing in the recruitment process for United States Customs, but there is no indication that it has interfered with his current employment. This also means there is no express or implied allegation of unemployability on account of this service-connected disability to, in turn, warrant considering his derivative entitlement to a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For these reasons and bases, the Board finds that the evidence does not support the assignment of a rating higher than 0 percent for the bilateral hearing loss, either on a schedular or extra-schedular basis. Moreover, there is not an approximate balance of evidence for and against the claim to warrant application of the benefit-of-the-doubt doctrine; instead, the preponderance of the evidence is against the claim, so it must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for entitlement to a rating higher than 0 percent for the bilateral hearing loss is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs