Citation Nr: 1333794 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-22 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for bilateral hearing loss, currently rated as 30 percent disabling. ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from November 1956 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee. Although the Veteran initially had requested a hearing at the Central Office in Washington, D.C. in his substantive appeal, he subsequently withdrew that request in September 2013. See 38 C.F.R. § 20.702(e) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT In April 2011, audiological testing revealed an average 66.25 decibel puretone threshold, with a speech recognition score of 80 percent, in the right ear (level IV); and an average 85 decibel puretone threshold, with a speech recognition score of 32 percent, in the left ear (level XI). CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.10, 4.85-4.87, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letter dated in March 2011 that was sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in March 2011 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the March 2011 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the June 2011 decision that is the subject of this appeal in its March 2011 letter. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, as well as the type of evidence necessary to establish a rating or effective date of an award (see letter from RO, dated in March 2011), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. Moreover, in regard to the notice requirements pertaining to increased-rating claims, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes (DCs) or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, and the Veteran received a VA examination in April 2011 which was thorough in nature and adequate for the purposes of deciding this claim. The April 2011 VA examination revealed findings that are adequate for rating the Veteran's bilateral hearing loss. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Factual Background In an October 2003 decision, the Board concluded that the Veteran's bilateral hearing loss was incurred in or aggravated by active service. Thus, pursuant to the decision, the RO, in a March 2004 rating action, granted service connection for bilateral hearing loss and assigned a 20 percent disabling rating under Diagnostic Code 6100, effective from June 11, 2001. In a September 2005 rating action, the RO increased the disability rating for the Veteran's service-connected bilateral hearing loss from 20 percent to 30 percent disabling, effective from July 20, 2005. In February 2011, the Veteran requested that his service- connected bilateral hearing loss be reevaluated for a higher rating. In a private medical statement from T.C.F., M.D., dated in August 2006, Dr. F. stated that he had been treating the Veteran for approximately 5 years. In addition, the Veteran had been followed by Dr. F.'s predecessor, Dr. J., since 1982. Dr. F. indicated that the Veteran had a longstanding history of hearing loss. According to Dr. F., the Veteran had lost more than 50 percent of his hearing. Dr. F. noted that the Veteran's hearing loss interfered with his activities of daily living. In April 2011, the Veteran submitted lay statements from his wife and a friend in support of his claim. In the statements, the Veteran's wife and friend reported that the Veteran's hearing problems had worsened. A VA audiological examination was conducted in April 2011. The Veteran stated that he had worked as a police officer for 42 years but was not currently working. The authorized audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 75 70 70 LEFT 40 45 95 100 100. The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was reported as 66.25 decibels in the right ear and 85 decibels in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 32 percent in the left ear. The examiner interpreted the results as showing bilateral mild to severe/profound sensorineural hearing loss. The examiner stated that according to the Veteran, he had difficulty understanding speech in all listening environments. The Veteran indicated that he was unable to participate in group conversations due to his hearing loss. III. Analysis Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, 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. See 38 C.F.R. § 4.7. For claims for increased ratings which do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When the issue involves a claim for an increased rating for hearing loss, the applicable rating will be determined by applying the numerical values listed in the audiometric examination report to the applicable rating tables. 38 C.F.R. § 4.85. It should be emphasized that "assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered." Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The Veteran's service-connected bilateral hearing loss is rated as 30 percent disabling under Diagnostic Code 6100, effective from July 20, 2005. He contends that his hearing loss constitutes a higher disability rating. Evaluations of defective hearing range from noncompensable to 100 percent and are based on organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with average hearing thresholds, with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes 11 auditory acuity levels, designated level I, for essentially normal acuity, through level XI for profound deafness. See 38 C.F.R. § 4.85. In accordance with 38 C.F.R. § 4.86, there is an alternative rating method which may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, VA 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. Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, VA 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. 38 C.F.R. § 4.86 (2013). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). In this case, the audiological findings from the Veteran's April 2011 VA audiological evaluation translate into Level IV hearing loss for the right ear and Level XI hearing loss for the left ear. See 38 C.F.R. § 4.85. Numeric designations IV and XI correspond to a 30 percent rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Rating Schedule provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. However, none of the Veteran's test results from the April 2011 VA audiological examination demonstrate either (1) a puretone threshold of 55 decibels or more in all four frequencies in any service- connected ear, or (2) a puretone threshold of 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, in any ear. 38 C.F.R. § 4.86. Therefore, the Veteran is not entitled to consideration for exceptional patterns of hearing impairment for his April 2011 VA examination. The Veteran has indicated that he has difficulty hearing and argues that he is therefore entitled to a higher rating. He is competent to describe his hearing loss. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). In addition, he has submitted private medical and lay evidence regarding his hearing loss. However, the rating criteria for hearing loss contemplate a degree of functional difficulty due to demonstrable hearing loss. Furthermore, the rating schedule for hearing loss relies primarily on the application of objective test data. 38 C.F.R. §§ 4.85, 4.86; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Therefore, while the Board has taken the Veteran's competent lay statements into consideration, as well as the private medical and lay evidence, his described symptomatology does not alter the Board's rating assignment. The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria. See 8 C.F.R. § 4.85, Diagnostic Code 6100; see also Lendenmann, 3 Vet. App. at 349. Thus, based on the April 2011 audiometric findings, the Board finds that a disability rating in excess of 30 percent for bilateral hearing loss is not warranted. Id. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since there is a preponderance of evidence against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has urged the application of the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b) (when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant). However, reasonable doubt does not exist concerning the objective data of the hearing tests. When that data is applied against the tables in the regulations, the resulting disability rating is incontrovertible. By applying the required data against the required tables, no increase is warranted. IV. Extraschedular Consideration for Hearing Loss The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in 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 Board finds that the rating criteria contemplate the Veteran's disability, productive only of bilateral decreased hearing acuity; a manifestation that is specifically contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's bilateral hearing loss and referral for consideration of an extraschedular rating is not warranted. See Martinak, supra. ORDER Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs