Citation Nr: 1331251 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-33 815A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1961 to April 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). At the Veteran's request, he was scheduled for a Travel Board hearing in July 2010; he failed to report. The matter was remanded in January 2012. FINDING OF FACT At no time during the appeal period is the Veteran's hearing acuity shown to have been worse than level II in either ear. CONCLUSION OF LAW A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (Code) 6100, 4.86 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper VCAA 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A June 2007 letter, prior to the August 2007 rating decision on appeal, explained the evidence necessary to substantiate the Veteran's claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing; it also informed him of rating and effective date criteria. December 2008 and August 2009 letters provided additional notice. The Veteran has had ample opportunity to respond/supplement the record. A January 2012 supplemental statement of the case (SSOC) readjudicated the matter. It is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA audiological examinations in July 2007 and April 2010. The Board finds that the examinations are adequate for rating purposes, as the examiners considered the reported history of the Veteran, and conducted thorough examinations, noting all findings necessary for consideration of the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The RO's actions have substantially complied with the January 2012 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (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. The Court further 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. Here, the July 2007 examination report does not include the examiner's comment regarding the impact of the Veteran's hearing loss on his ability to function in occupational and daily living activities. However, the April 2010 VA audiometry report does include such comment, and, in essence, constitutes corrective action addressing the defect. The Veteran has not alleged any prejudice from an examination deficiency. The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any pertinent evidence.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claims for increase were received in May 2007, the period for consideration is from May 2006 until the present. Where there is a question as to which of two evaluations applies, the higher evaluation 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the claimant's average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). In his May 2007 claim for increase the Veteran complained that his hearing had worsened over the years, to the point where he now needed hearing aids. VA treatment records show that on June 2006 VA authorized audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 40 45 LEFT 30 25 25 45 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. The diagnosis was moderate bilateral sensorineural hearing loss. An April 2007 private treatment report notes that the Veteran complained of decreased hearing and had returned for re-evaluation. Audiogram results showed asymmetric sensorineural hearing loss AS (left ear) which is dramatically different from previous audiogram in 2005. The Veteran was placed on a short course of prednisone and instructed to follow-up in two weeks for repeat audiogram. On May 2007 follow-up evaluation, the Veteran continued to complain of having trouble communicating. Repeat audiogram showed improved results; however, the Veteran continued to have moderate sensorineural hearing loss AU (both ears) and hearing aids were recommended. Notably, the April and May 2007 (and August 2007) private audiograms are presented in chart form which have not been interpreted (converted to numerical values). The Board has considered having the findings on these charts interpreted by an audiologist. However, under governing regulation there are specific requirements for testing for hearing loss, among them a speech discrimination test conducted in a controlled setting using a Maryland CNC word list, and there is no indication the April and May 2007 audiological consultations were conducted in accordance with the regulatory criteria; thus, the findings of the April and May 2007 audiograms are inadequate for rating the Veteran's hearing loss disability (but were considered in finding that further development of medical evidence was indicated). The Veteran underwent a subsequent VA audiological examination in connection with this appeal which was conducted in accordance with the standards required for VA rating purposes. On April 2010 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 45 55 LEFT 35 30 35 55 65 Speech audiometry revealed speech recognition ability of 84 percent in each ear. The diagnosis was moderate right ear sensorineural hearing loss and mild to moderately severe left ear sensorineural hearing loss. The examiner noted that the Veteran's hearing difficulty had a "significant" effect on his occupation. [Notably, a VA examination in connection with an unrelated claim shows that the Veteran had been employed by the U.S. postal service and retired in 1991 based on age or duration of work.] Applying the results of these VA audiological evaluations to Table VI produces a finding that, on each examination, the Veteran has had Level II hearing acuity in each ear (which under Table VII warrants a 0 percent rating). As an exceptional pattern of hearing is not shown (and there is no indication of language difficulty or inconsistent speech discrimination scores), rating under the alternate criteria of Table VIa would be inappropriate. The Veteran's prescription for (and use of) hearing aids is evidence that he has impaired hearing; however, such alone does not establish that the hearing loss disability has risen to a compensable level (or provide a basis for an increased rating). Inasmuch as there is no evidence that the Veteran's hearing loss disability met the schedular requirements for a compensable rating at any time during the appeal period, a "staged" increased rating is not warranted. The Board finds that referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is not warranted. The functional loss noted and also self-reported by the Veteran, i.e., increasing difficulty hearing, is fully contemplated by the schedular criteria. See 38 C.F.R. § 4.1; consequently, those criteria are not inadequate. See Thun v. Peake, 23 Vet. App. 111 (2008). Finally, as the Veteran is retired and has not alleged unemployability due to his hearing loss, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. ORDER A compensable rating for bilateral hearing loss is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs