Citation Nr: 1329414 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-02 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating higher than 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1959 to January 1962. He appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted his claim of entitlement to service connection for bilateral (left and right ear) hearing loss and assigned an initial 10 percent rating for this disability retroactively effective from May 28, 2010, the date of receipt of his claim for this condition. He wants a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others; this change in rating, over time, while compensate the Veteran for this variance in the severity of the disability). In another decision since issued in July 2012, during the pendency of this appeal, the RO confirmed and continued this initial 10 percent rating, so even after considering the results of a more recent VA compensation examination in June 2012. FINDINGS OF FACT 1. During his initial May 2010 hearing evaluation, at worst, the Veteran had Level III hearing loss in his right ear and Level XI hearing loss in his left ear; whereas during his additional hearing evaluation later that year, in October 2010, he had Level II hearing loss in his right ear and still Level XI hearing loss in his left ear; but during his most recent June 2012 hearing evaluation, he had only Level I hearing loss in his right ear, though still Level XI hearing loss in his left ear. 2. It is not shown his disability is so exceptional or unusual as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria are met for a higher initial rating of 20 percent for the bilateral hearing loss disability as of the initial May 2010 hearing evaluation, but decreasing to 10 percent as of the October 2010 hearing evaluation and to even less, 0 percent, as of the most recent June 2012 hearing evaluation. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Part 4, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). 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 notice and then readjudicating the claim - including in a statement of the case (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 the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A VCAA letter was sent to him in July 2010 indicating the type of evidence and information he needed to substantiate his claim and apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also notified him that a "downstream" disability rating and an effective date for the award of benefits would be assigned in the eventuality service connection was granted, in compliance with Dingess, which it later was in the November 2010 decision that prompted this appeal for a higher initial rating. In Dingess, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date 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 the notice was intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in his NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher initial rating for this disability and a discussion of the reasons and bases for not assigning a higher rating. See 38 U.S.C.A. § 7105(d)(1). The RO also since has readjudicated his claim in a July 2012 decision and, because the claim for a higher initial rating continued to be denied, provided him an SSOC in August 2012. Therefore, VA has provided him all required notice concerning this downstream initial rating claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the additional duty to assist him with his claim, his pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to this initial-rating claim, is available and not part of the claims file. There equally is no suggestion of a material change in the severity of this service-connected disability since his most recent VA compensation examination in June 2012, so reexamination is not required. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the mere passage of time since an otherwise adequate VA examination was performed. See VAOPGCPREC 11-95. See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, allowing the examiners to consider the relevant history, and they examined the Veteran personally and provided findings in sufficient detail with supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (indicating it would be incumbent on the adjudicator to return an examination report if it was inadequate). The Veteran was specifically examined to assess and then reassess the severity of this disability at issue. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records of his evaluation and treatment, especially when considered in the aggregate, satisfy 38 C.F.R. § 3.326. In summary, then, the Board finds that it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran). Disability Rating Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is 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. His entire history is reviewed when making disability determinations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some further discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In Fenderson, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which a Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. In this circumstance, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as a "staged" rating. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (since extending this practice even to claims that do not involve initial ratings). In this particular case at hand, there has not been a material change in the severity of the Veteran's hearing loss disability since the granting of service connection, that is, such as to warrant a higher rating and consequently additional compensation, so a uniform rating is warranted. In evaluating service connected hearing impairment, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo- Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. To evaluate the degree of disability from service-connected hearing loss, these 11 auditory acuity levels have designations ranging from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. Testing for hearing loss is conducted by a state- licensed audiologist, including employing a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing acuity and the vertical columns the ear having the poorer hearing acuity. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86(a) and (b) concerning an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.85(c). Copies of the pertinent tables were provided to the Veteran in the SOC. When the puretone threshold at each of the four specified frequencies of 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. See 38 C.F.R. § 4.86(a). Also 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. See 38 C.F.R. § 4.86(b). The Veteran maintains that he can barely hear in his left ear and mostly does not hear anything. He also asserts that his right ear has very little hearing ability. He is competent to report having difficulty hearing. He is also credible in his statements in this regard. However, his lay assertions are not the only means of rating his hearing loss since the Board also must consider the results of his objective hearing tests, which measured his hearing acuity in certain specifically defined frequencies and in certain specified conditions and circumstances. So this determination of the severity of his hearing loss is multi- factorial, not just predicated on his lay testimony, meaning the Board also must consider the relevant medical evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (indicating the Veteran was incompetent to testify concerning the etiology of his rheumatic fever since it is not a simple condition). To this end, in May 2010, the Veteran was afforded an audiological evaluation by King Hearing Center. The audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 40 50 55 LEFT 55 70 75 90 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 0 percent in the left ear. The puretone threshold average in the right ear was 43.75. The puretone threshold average in the left ear was 72.50. The examiner concluded the Veteran had mild-to-profound sensorineural hearing loss in his right ear and moderate-to- profound sensorineural hearing loss in his left ear. In October 2010, the Veteran was afforded a VA compensation examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 45 55 55 LEFT 65 65 70 75 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 32 percent in the left ear. The puretone threshold average in the right ear was 48.75. The puretone threshold average in the left ear was 68.75. The examiner determined the Veteran had moderate sensorineural hearing loss in his right ear and a moderately-severe sloping to severe sensorineural hearing loss in his left ear. In June 2012, the Veteran had another VA compensation examination. On the authorized audiological, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 50 55 60 LEFT 75 70 75 75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 48 percent in the left ear. The puretone threshold average in the right ear was 52. The puretone threshold average in the left ear was 74. The examiner affirmed the Veteran had bilateral sensorineural hearing loss. He indicated the Veteran's hearing loss had a functional impact and impacted the ordinary conditions of daily life because he would get frustrated and mad because he did not hear and understand others. The examiner was required to specifically address 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). See also Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); and 38 C.F.R. § 4.10 (2013). Under Table VI, the May 2010 examination results constitute Level III hearing loss in the right ear and Level XI hearing loss in the left ear. When combined using Table VII, this correlates to a 20 percent disability evaluation. This 20 percent rating exceeds the 10 percent rating that instead would result from using Tables VIA and Table VII, when recognizing the Veteran evidenced an exceptional pattern of hearing impairment in his left ear since he had 55-decibel or greater losses in the relevant frequencies of 1,000, 2,000, 3,000, and 4,000 Hz. Under Table VI, the October 2010 VA examination results correlate to Level II hearing loss in the right ear and Level XI hearing loss in the left ear. When combined using Table VII, this correlates to the same lesser 10 rating. This lesser 10 percent rating also results when using instead Tables VIA and VII, since the Veteran again had an exceptional pattern of hearing loss in his left ear because he again had 55-decibel or greater losses in the relevant frequencies of 1,000, 2,000, 3,000 and 4,000 Hz. Under Table VI, the most recent June 2012 VA examination results correlate to just Level I hearing loss in the right ear, but still Level XI hearing loss in the left ear. When combined using Table VII, this results in a noncompensable or 0 percent disability evaluation. The same is true if alternatively using Tables VIA and VII, since the Veteran again had an exceptional pattern of hearing loss in his left ear because he again had 55-decibel or greater losses in the relevant frequencies of 1,000, 2,000, 3,000 and 4,000 Hz. So to summarize, according to the results of the initial May 2010 hearing evaluation, he is entitled to a higher 20 percent rating. According to the results of the intervening October 2010 hearing evaluation, he is entitled to just his existing 10 percent rating. Whereas the most recent June 2012 hearing evaluation indicates he is entitled to only a lesser 0 percent rating. The Board therefore is "staging" his rating to coincide with the level of hearing loss showing during these respective evaluations. See Fenderson, 12 Vet. App. at 125-26. His claim consequently is partly being granted, but also partly being denied. Consider also that the procedural protections of 38 C.F.R. § 3.344, regarding the stabilization of disability evaluations, are inapplicable when, as here, the Board is retroactively assigning "staged" ratings. See Singleton v. Shinseki, 23 Vet. App. 376 (2010). The Court's rationale in Martinak 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)(1) 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)(1) 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. But also in Martinak, the Court explained 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. Here, however, the June 2012 VA compensation examiner duly addressed the effect of the Veteran's hearing loss disability on his occupational functioning and daily activities. 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 extra-schedular rating. Id. The Board finds 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, especially since in this decision the Board is "staging" the rating for his disability to compensate him for the variance in its severity (20 percent, then 10 percent, and ultimately down to 0 percent). His level of hearing loss over this span of time, since the filing of his underlying claim of entitlement to service connection for this disability, is fully contemplated by the objective standards of the applicable code. The symptoms associated with his hearing loss disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, and the Board finds that the rating criteria reasonably describe his disability. There additionally have not been periods of hospitalization, certainly not on a frequent basis, or what could be described as marked interference with his employment, meaning above and beyond that contemplated by his schedular ratings. 38 C.F.R. § 4.1. Therefore, referral of this claim for consideration of an extra- schedular rating is unwarranted. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The rating for this bilateral hearing loss disability is "staged" as follows: a higher 20 percent initial rating is assigned as of the initial May 2010 hearing evaluation, subject to the statutes and regulations governing the payment of VA compensation; the rating decreases to 10 percent as of the October 2010 hearing evaluation, and then again down to 0 percent, so noncompensable, as of the June 2012 hearing evaluation. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs