Citation Nr: 1331140 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-03 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss, prior to December 14, 2011, and in excess of 10 percent from December 14, 2011. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from May 1951 to January 1953 with periods of National Guard service between 1950 and 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in pertinent part, granted service connection for bilateral hearing, assigning a noncompensable rating, effective August 13, 2009. In a January 2012 rating action, the RO increased the rating for bilateral hearing loss to 10 percent, effective December 14, 2011. Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to a higher rating remains on appeal, as the Veteran has not indicated his desire to withdraw that issue. See AB v. Brown, 6 Vet. App. 35 (1993). In support of his claim, the Veteran testified at a Travel Board hearing at the RO in April 2013 before the undersigned Veterans Law Judge of the Board (VLJ). In June 2003, the Board remanded this case. FINDINGS OF FACT 1. Prior to December 14, 2011, the Veteran had Level I hearing in his right ear and Level I hearing in his left ear. 2. As of December 14, 2011, the Veteran had, at worse, Level IV hearing in his right ear and Level IV hearing in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 0 percent prior to December 14, 2011 and in excess of 10 percent from December 14, 2011, for bilateral hearing loss disability are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Part 4, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 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 the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters were sent in August 2009, September 2009, and June 2013. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. With regards to the claim for a higher initial rating for hearing loss, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the United States Court of Appeals for Veterans Claims (Court) 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 is 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 the NOD, the Veteran took issue with the initial noncompensable disability rating assigned, later increased to 10 percent, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB. 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 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). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and determined that the Veteran had not received recent treatment, but wanted a new examination which was the basis for a remand decision in June 2003. The Veteran also volunteered his symptom history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, the Veteran's 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 in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. 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 satisfy 38 C.F.R. § 3.326. As noted, the case was remanded for a new VA examination which was conducted in June 2013 to determine the current level of severity of the hearing loss disability. In obtaining this additional medical evidence, the Board is satisfied there was compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran 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 as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. 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 discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) 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. 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 "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has been a material change in the disability level during the appeal period and staged ratings are 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. Testing for hearing loss is conducted by a state-licensed audiologist, including 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 and the vertical columns the ear having the poorer hearing. 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. See 38 C.F.R. § 4.85(c). 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. See 38 C.F.R. § 4.86(a). 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 has difficulty hearing and distinguishing speech. The Veteran is competent to report having difficulty hearing. He is also credible in his statements in that regard. However, his assertions are not as probative as the audiograms and medical opinions discussed below regarding his exact audiological findings at various Hertz levels or of his speech recognition scores as these matters require medical expertise and a complex medical assessment. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In October 2009, the Veteran was afforded an audiological evaluation. The audiological evaluation revealed that puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 55 65 70 LEFT 20 45 70 75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. The puretone threshold average in the right ear was 50. The puretone threshold average in the left ear was 52.50. The examiner stated that the Veteran had normal to severe sensorineural hearing loss bilaterally. In December 14, 2011, the Veteran was afforded a VA examination. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 65 65 60 LEFT 25 55 75 75 The puretone threshold average in the right ear was 51. The puretone threshold average in the left ear was 58. The examiner stated that the use of speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., which made combined use of puretone averages and speech discrimination scores inappropriate. The examiner stated that the Veteran had sensorineural hearing loss in the frequency range of 500-4000 Hertz. The examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life including work because he would become frustrated with his hearing and essentially had difficulty discriminating between words. On June 26, 2013, the Veteran was afforded another VA examination. On the authorized audiological, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 65 70 70 LEFT 35 55 75 80 The puretone threshold average in the right ear was 60. The puretone threshold average in the left ear was 61 The examiner stated that the Veteran had sensorineural hearing loss in the frequency range of 500-4000 Hertz. The examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life including work because the Veteran used binaural amplification and would not understand the difference between certain word sounds which were articulated. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. However, the examiner stated that word discrimination was done using Monitored Live Voice (MLV) because of the Veteran's frustration and inability to condition to task using a recording. The examiner indicated that the scores were valid for microphone, but not ratable according to VA protocol. In viewing these hearing evaluations, under the rating criteria, the October 2009 examination results constitute Level I hearing on the left and Level I hearing on the right. When combined, the result is a non-compensable disability evaluation. With regard to the next two evaluations, valid speech discrimination scores for VA rating purposes could not be obtained. As such, 38 C.F.R. § 4.85, Table VIA must be used, i.e., using only the puretone threshold average to assign a numeric designation for each hear. With regard to the December 14, 2011 examination, the right ear results constitute Level III hearing and the left ear results constitute Level IV hearing. When combined, the result is a 10 percent disability evaluation. Under the rating criteria, the June 26, 2013 examination results constitute Level IV hearing on the right and Level IV hearing on the left. When combined, the result is a 10 percent disability evaluation. Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, on any of the examinations. Thus, prior to December 14, 2011, the criteria were not met for a compensable rating, but as of that date, a 10 percent rating was warranted, but no higher. The Board acknowledges the Veteran's contentions regarding his difficulty hearing, however, the audiology examinations are more probative with regard to the level of disability under the Rating Schedule as it specifically pertains to that rating criteria. Further, in Martinak v. Nicholson, 21 Vet. App. 447 (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. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. However, the last two VA examination report addressed the effect of the Veteran's hearing loss disability on occupational functioning and daily activities and the Board has duly considered those effects in finding that a 10 percent rating, rather than a non-compensable rating is warranted, as of December 14, 2011. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 0 percent prior to December 14, 2011 and higher than 10 percent thereafter. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's hearing loss disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. There have not been periods of hospitalization or marked interference with employment shown. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial compensable rating for bilateral hearing loss, prior to December 14, 2011, and in excess of 10 percent from December 14, 2011, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs