Citation Nr: 1334469 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-50 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased initial disability rating for bilateral hearing loss, rated 10 percent prior to June 27, 2013 and 20 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective from February 27, 2008. In a September 2011 rating decision, the RO increased the disability rating to 10 percent, effective February 27, 2008. A videoconference hearing was held before the undersigned Veterans Law Judge (VLJ) in March 2013. A transcript from that hearing was associated with the Veteran's file. This case was previously before the Board in April 2013, and was remanded for additional development of the record. In August 2013, the Appeals Management Center (AMC) increased the disability rating to 20 percent, as of June 27, 2013. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to June 27, 2013, the Veteran's bilateral hearing loss was manifested by no worse than Level V hearing loss in the right ear and Level III hearing loss in the left ear. 2. From June 27, 2013, the Veteran's bilateral hearing loss was manifested by no worse than Level V hearing loss in the right ear and Level VI hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to June 27, 2013, the criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2013). 2. Since June 27, 2013, the criteria for an evaluation in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, VCAA notice concerning the underlying claim for service connection was provided in March 2008. However, the Veteran's appeal for a higher rating arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the Veteran, the Veteran volunteered his treatment history, and the Veteran was asked questions concerning the symptomatology related to his claims for a higher rating. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board notes that actions requested in the prior remand have been undertaken. A VA examination was conducted in July 2013 and the claim was thereafter readjudicated in a supplemental statement of the case. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for bilateral hearing loss was granted in an August 2008 rating decision. The RO assigned a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Subsequently, in a September 2011 rating decision, the RO increased the disability rating to 10 percent. While on remand, in an August 2013 rating decision, the AMC increased the disability rating to 20 percent, as of June 27, 2013. The Veteran contends that he is entitled to a higher disability rating for his bilateral hearing loss. In cases for which the evaluation of hearing loss is at issue, ratings range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2013). The disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a) (2013). Further, when the average 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. 38 C.F.R. § 4.86(b) (2013). Each ear is considered separately. 38 C.F.R. § 4.86. The Veteran underwent a VA outpatient audiological evaluation in March 2008. The Veteran stated that he worked on an aircraft carrier deck while in service. He indicated that he did not wear ear plugs or ear protection. The graph for the evaluation was not interpreted and speech recognition scores were not provided. Thus, this evaluation cannot be used for rating purposes. 38 C.F.R. § 4.85. The Veteran was afforded a VA audiological examination in July 2008. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 45 65 65 LEFT 40 50 65 65 The Veteran's puretone threshold average was 53.75 decibels in the right ear and 55 decibels in the left ear. Speech audiometry tests revealed a speech recognition ability of 92 percent in his right ear and 94 percent in his left ear. The examiner's impression was bilateral sensorineural hearing loss. Applying the results from the July 2008 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear. When one ear has Level I hearing loss and the other ear has Level I hearing loss, a 0 percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85 The Veteran underwent a VA audiological examination in September 2011. On that occasion, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 50 65 75 LEFT 50 60 705 75 The Veteran's right ear puretone threshold average was 58.75 decibels and his left ear puretone threshold average was 63.75 decibels. Speech audiometry tests revealed a speech recognition ability of 72 percent in his right ear and 84 percent in his left ear. Applying the results from the September 2011 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level V hearing loss in the right ear and Level III hearing loss in the left ear. When one ear has Level V hearing loss and the other ear has Level III hearing loss, a 10 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. Subsequently, during his March 2013 Video Conference hearing, the Veteran indicated that his service-connected hearing loss disability had gotten worse. He asserted that the disability rating did not truly indicate the correct picture of how bad his hearing loss was and that he had trouble hearing people speak. He stated that he had to ask the customers at his art gallery to speak louder and that he had to turn up his hearing aid while in church. He also stated that it was hard for him to hear when he was in a crowded, noisy area. The Board determined in its April 2013 remand that further audiological testing was warranted to assess whether there had, in fact, been any recent changes in the Veteran's hearing loss. After a review of the record, the Board finds that the evidence for the period prior to June 2013 reveals a hearing impairment consistent with no more than a 10 percent rating. Indeed, the July 2008 VA examination supported only a noncompensable evaluation. It was not until the September 2011 VA examination that the Veteran's average pure tone thresholds and speech recognition scores supported a 10 percent rating. The RO's choice to award the 10 percent rating back to the date of claim, rather than assign a staged rating based on the facts found, was inappropriate. Nevertheless, during the period prior to June 2013, the Veteran's hearing at worst was Level V in the right ear and Level III in the left, which supports only a 10 percent rating under Tables VI and VII at 38 C.F.R. § 4.85. The audiological findings during this period do not reflect an exceptional pattern of hearing loss, and the provisions of 38 C.F.R. § 4.86 do not apply. Accordingly, a rating higher than 10 percent for the period prior to June 27, 2013 is denied. The Veteran was afforded a VA examination in June 2013. The puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 60 70 80 LEFT 75 70 75 80 The Veteran's right ear puretone threshold average was 67.5 decibels and his left ear puretone threshold average was 75 decibels. Speech audiometry tests revealed a speech recognition ability of 78 percent in his right ear and 90 percent in his left ear. The examiner's impression was bilateral sensorineural hearing loss. The Board notes, based upon the findings reported above, that the Veteran meets the criteria for exceptional hearing loss in that the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. As such, the Roman numeral designation for hearing impairment may be taken from either Table VI or Table VIa, whichever results in the higher numeral. Using Table VI, Level IV hearing was demonstrated for the right ear. Using Table VI, Level III hearing was demonstrated for the left ear. Using Table VIa for the right ear, based upon puretone results only, the Veteran was shown to have Level V hearing. Using Table VIa for the left ear, the Veteran was shown to have to Level VI hearing. Pursuant to 38 C.F.R. § 4.86 (b), and using the Veteran's puretone threshold averages results from Table VIa which were higher numerals, when one ear has Level V hearing loss and the other ear has Level VI hearing loss, application of these findings correspond to a 20 percent rating under Table VII as of June 27, 2013. After a review of the record, the Board finds that for the period since June 2013, the evidence reveals a hearing impairment consistent with a 20 percent disability rating. Even when taking into consideration the Veteran's exceptional pattern of hearing impairment, application of the reported findings result in no worse than a 20 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. A rating higher than 20 percent for the period since June 27, 2013, is denied. The VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and are highly probative. The Veteran submitted information regarding his difficulties with his hearing and the Board finds no prejudice in deciding the claim. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). At the July 2008 VA examination, the Veteran indicated that he has the greatest difficulty understanding speech. At the June 2013 examination, the Veteran stated that he was hard of hearing, even when he was wearing his hearing aids. He stated that he had problems if someone who was speaking was not close to him or at a distance. He indicated that if a few people are talking, he just "lose(s) the conversation." The Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life. However, the evaluation of hearing loss is predicated upon the results of the audiology studies of record. See Lendenmann, supra. The findings on examination are more probative than the lay contentions as to the extent of hearing loss. In the absence of any additional medical evidence showing a more severe hearing disability, and based on the results of the audiological evaluations discussed above, a rating higher than 10 percent prior to June 27, 2013, and higher than 20 percent since June 27, 2013, is not warranted. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for the more severe hearing loss than presently rated. Moreover, the criteria also considers instances in which there is an exceptional pattern of hearing impairment and such criteria resulted in an award of a higher rating from June 2013. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to an evaluation in excess of 10 percent prior to June 27, 2013 and in excess of 20 percent thereafter, for bilateral hearing loss, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs