Citation Nr: 1334550	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  10-13 722	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Waco, Texas


THE ISSUE

Entitlement to an increased disability rating for a hearing loss disability, which was rated as left ear hearing loss with a 10 percent rating assigned prior to April 19, 2012, and which is currently rated as bilateral hearing loss with a 60 percent rating assigned since April 19, 2012.


REPRESENTATION

Appellant (the Veteran) is represented by: Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Cramp, Counsel




INTRODUCTION

The Veteran had active service from October 1961 to August 1962.  

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the RO in Waco, Texas.

The Board acknowledges that the Veteran's representative has provided written argument addressing the RO's April 2009 denial of service connection for chronic obstructive pulmonary disease (COPD) and emphysema.  Although the Veteran disagreed with the denial of service connection for these disorders, he did not perfect the appeal.  

On the VA Form 9, the Veteran indicated that he had read the statement of the case and only wished to appeal the evaluation of hearing loss (and tinnitus).  The Board finds that the Veteran's explicit instructions were correctly interpreted by the RO as excluding the issues of entitlement to service connection for COPD and emphysema from the perfected appeal.  

VA law provides that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200 (2013).  

A substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information.  38 C.F.R. § 20.202 (2013). 

If the statement of the case and any prior supplemental statements of the case addressed several issues, the substantive appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed.  38 C.F.R. § 20.202.  

Here, there is no ambiguity regarding the Veteran's intent.  The Veteran notified the RO that his substantive appeal did not apply to any issue listed on the statement of the case other than the evaluation of hearing loss.  The Board notes that rating for tinnitus was not included on the statement of the case.

The Board acknowledges that certain deficiencies in perfecting an appeal can be deemed waived if the RO acts in such a way as would lead the claimant to believe that an appeal was properly perfected.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (by treating a matter as if it were part of veteran's timely filed substantive appeal for more than five years, VA waived any objections it might have had to the timeliness of the appeal with respect to the matter).  

Here, subsequent to receipt of the VA Form 9, the RO has consistently treated the claims of entitlement to service connection for COPD and emphysema as not having been perfected.  The appeal as to those issues was closed in VA's appeals tracking system (VACOLS) and subsequent supplemental statements of the case in June 2012 and January 2013 did not include those issues.  The VA Form 8, Certification of Appeal, also does not include the claims of entitlement to service connection for COPD and emphysema.  Accordingly, as there is no substantive appeal as to those issues, and as VA has not acted in such a way as would reasonably lead the Veteran to believe he had perfected appeals as to those issues, there is no active appeal as to entitlement to service connection for COPD or emphysema.  

Regarding the Veteran's assertion on the VA Form 9 that his appeal encompassed the rating for tinnitus, there can be no valid appeal regarding a claim that was not actually decided by the RO.  Neither the April 2009 rating decision nor the February 2010 statement of the case addressed a tinnitus claim.  Indeed, service connection for tinnitus was not established until a March 2012 rating decision, after the March 2010 VA Form 9.  The Veteran did not disagree with the March 2012 rating decision.  Accordingly, there is no active appeal regarding the rating for tinnitus.  

In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence.  
FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  Prior to April 19, 2012, the Veteran's left ear hearing loss disability was manifested by level IX hearing in the left ear.  

3.  Since April 19, 2012, the Veteran's bilateral hearing loss disability was manifested by level X hearing in the left ear and by Level X hearing in the right ear.


CONCLUSIONS OF LAW

1.  Prior to April 19, 2012, the criteria for a disability rating higher than 10 percent for left ear hearing loss were not met for any portion of that period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85 (Diagnostic Code 6100), 4.86 (2013).

2.  Since April 19, 2012, the criteria for a disability rating of 80 percent for bilateral hearing loss are met; the criteria for a rating in excess of 80 percent are not met for any portion of that period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85 (Diagnostic Code 6100), 4.86 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is seeking an increased disability rating for a hearing loss disability, which is currently (since April 19, 2012) rated as bilateral hearing loss, and which was (prior to April 19, 2012) rated as left ear hearing loss.  

Service connection was originally granted for left ear hearing loss in a December 1991 rating decision.  Service connection for right ear hearing loss was denied at that time.  The rating decision on appeal denied an application to reopen the claim of entitlement to service connection for right ear hearing loss and denied a disability rating for left ear hearing loss in excess of 10 percent.  During the course of the appeal, in November 2012, service connection was effectively granted for right ear hearing loss under 38 C.F.R. § 3.383(a)(3)(2013) (paired organ considerations), and the service-connected disability was recharacterized as bilateral hearing loss, with a 60 percent rating assigned effective April 19, 2012.  While the Veteran has never specifically appealed the 60 percent rating assigned in the November 2012 rating decision, the Veteran is presumed to seek the maximum available benefit for a disability.  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993).  

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2013).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.  38 C.F.R. § 4.3.  

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the United States Court of Appeals for Veterans Claims (Veterans Court) extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."

Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992).  

The rating schedule establishes 11 auditory hearing acuity levels based on average puretone thresholds and speech discrimination.  See 38 C.F.R. §§ 4.85.

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, 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.  38 C.F.R. § 4.86.

When the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 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 higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that, prior to April 19, 2012, a disability rating for left ear hearing loss in excess of 10 percent is not warranted.  

The current appeal arises from a claim for increased received at the RO on October 24, 2008.  The report of VA audiology consult in May 2007 reveals the following pure tone thresholds in decibels: 




HERTZ



1000
2000
3000
4000
Average
LEFT
65
80
100
100
86

Speech recognition ability was 76 percent.  Applying these values to the Table VI results in a numeric designation of level V in the left ear.  

As each of the four frequencies is 55 decibels or more, use of Table VIA is appropriate.  Applying the value of 86 under that table results in level VIII in the left ear, the higher of the two values.  Application of Table VII at 38 C.F.R. § 4.85 produces a zero percent rating.  That is, the combination of level VIII in the left ear with level I in the nonservice-connected right ear results in a zero percent rating.  

The report of VA examination in January 2009 reveals the following: 




HERTZ



1000
2000
3000
4000
Average
LEFT
64
85
100
100
88

Speech recognition ability was 70 percent.  Applying these values to the Table VI results in a numeric designation of level VII in the left ear.  Applying the value of 88 under Table VIA results in level VIII in the left ear, the higher of the two values.  Application of Table VII at 38 C.F.R. § 4.85 produces a zero percent rating.  

The report of VA audiology assessment in April 2011 reveals the following: 




HERTZ



1000
2000
3000
4000
Average
LEFT
70
90
110
105
94

Speech recognition ability was 60 percent.  Applying these values to the Table VI results in a numeric designation of level VIII in the left ear.  Applying the value of 94 under Table VIA results in level IX in the left ear, the higher of the two values.  Application of Table VII at 38 C.F.R. § 4.85 produces a zero percent rating.  

The report of VA examination in January 2012 reveals the following: 




HERTZ



1000
2000
3000
4000
Average
LEFT
70
90
105+
105
93

Speech recognition ability was 52 percent.  Applying these values to the Table VI results in a numeric designation of level VIII in the left ear.  Applying the value of 93 under Table VIA results in level IX in the left ear, the higher of the two values.  Application of Table VII at 38 C.F.R. § 4.85 produces a zero percent rating.  

Thus, not only do the audiometric readings taken during this period not support entitlement to a rating in excess of 10 percent, they do not even demonstrate hearing impairment to a level that would support the current 10 percent rating.  It would appear that the 10 percent rating was granted based on an aberrant speech recognition score of 20 percent in November 1998, which has not been duplicated or even approached in any subsequent testing.  Indeed, the RO proposed a rating reduction in June 2012 based on consistent examinations showing improved readings over the November 1998 examination.  The grant of service connection for right ear hearing loss obviated the necessity of further action regarding the proposed reduction.  

The Board notes that the Veteran did not appeal the effective date of the grant of service connection for right ear hearing loss, and the Board does not have jurisdiction to address that matter.  With only a single service-connected ear prior to April 19, 2012, it would be quite difficult under the rating schedule to demonstrate entitlement to a compensable rating, much less a rating in excess of 10 percent.  The evidence in this case does not support a rating in excess of 10 percent during any portion of the period prior to April 19, 2012.  

Turning to the period since April 19, 2012, after a review of all of the evidence, the Board finds that entitlement to an increased disability rating for bilateral hearing loss is demonstrated for at least a portion of that period.   

The Board notes that the RO's calculation of the pure tone average in the November 2012 rating decision was in error, and this error led to its determination that only a 60 percent rating was appropriate for the entire period.  The error was in including the pure tone reading at 500 Hertz to its calculation of the average, which was explicit in the rating decision.  

VA regulations specify that the pure tone threshold average, as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  See 38 C.F.R. § 4.85(d).  

The RO's use of the comparatively lower values at the 500 Hertz level (see November 2012 rating decision at Page 2) was not only improper, but served to produce lower averages.  While readings at the 500 Hertz level are used in determining whether there is hearing impairment for VA purposes, these readings are not used in calculating the disability rating.  

The report of VA examination in April 2012 reveals that pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
75
100
105
110
98
LEFT
80
95
110+
110+
99

Speech recognition ability was 64 percent in the right ear and of 60 percent in the left ear.  Applying these values to Table VI results in level VIII in the right ear and level VIII in the left ear.  Applying the value 98 under Table VIA results in level X in the right ear.  Applying the value of 99 under Table VIA results in level X in the left ear.  Application to Table VII at 38 C.F.R. § 4.85 produces an 80 percent rating.  

A VA audiology assessment in May 2012 reveals the following:




HERTZ



1000
2000
3000
4000
Average
RIGHT
75
100
105
110
98
LEFT
80
110
110+
110+
103

Speech recognition results were not reported; therefore, Table VI cannot be used.  Applying the value 98 under Table VIA results in level X in the right ear.  Applying the value of 103 under Table VIA results in level X in the left ear.  Application of Table VII at 38 C.F.R. § 4.85 produces an 80 percent rating.  

A VA audiology assessment in June 2012 reveals the following:




HERTZ



1000
2000
3000
4000
Average
RIGHT
75
100
105
105
96
LEFT
80
110
110+
110+
103

Speech recognition results were not reported; therefore, Table VI cannot be used.  Applying the value of 96 under Table VIA results in level IX in the right ear.  Applying the value of 103 under Table VIA results in level X in the left ear.  Application of Table VII at 38 C.F.R. § 4.85 produces a 70 percent rating.  

A VA audiology assessment in July 2012 reveals the following:




HERTZ



1000
2000
3000
4000
Average
RIGHT
80
100
105
110
99
LEFT
80
110
110+
110+
103

Speech recognition results were not reported; therefore, Table VI cannot be used.  Applying the value of 99 under Table VIA results in level X in the right ear.  Applying the value of 103 under Table VIA results in level X in the left ear.  Application of Table VII at 38 C.F.R. § 4.85 produces an 80 percent rating.  

Thus, when the correct values are used in calculating the appropriate rating, the evidence demonstrates that an increased 80 percent rating is warranted since April 19, 2012.  

While the June 2012 result indicates a 70 percent rating, as the measurements shortly before and after that indicate an 80 percent rating, the Board resolves any doubt in favor of establishing an 80 percent rating for the entire period since April 19, 2012.  

The weight of the evidence is against any higher ratings than those specified.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Although, as noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Veterans Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  

In this regard, the January 2012 VA examiner specifically addressed the functional effects caused by the Veteran's hearing loss disability.  The examiner found that there were effects on the Veteran's everyday life, including occupational effects.  These were described as a significant difficulty following conversational speech.  The Board's grant of this claim reflect recognition of the problem.     

The Board notes that the Veterans Court's rationale in 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) in considering whether referral for an extra- schedular rating is warranted.  Specifically, the Veterans Court noted that, "[u]nlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[-]schedular rating is warranted.  The Secretary'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.  

With respect to the current claim, the Veteran has not submitted any statements that describe the effect that his hearing loss has caused regarding occupational or social functioning aside from the comments made to VA examiners.  In his claim, and VA Form 9, he stated that his hearing was worse, but did not describe how it was worse.  In his notice of disagreement, he provided no discussion of his symptoms.  Nevertheless, the Board finds that the functional effects of his hearing loss disability are adequately addressed by the January 2012 examination report and are sufficient for the Board to consider whether referral for an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b).

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.  Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so 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").  Thun v. Peake, 22 Vet. App 111, 115-16 (2008).

In this Veteran's case, the Board recognizes and has considered the complaints of decreased auditory acuity and difficulty understanding speech as described in the January 2012 examination report.  The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation.  For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's left ear hearing loss.  

In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The notice requirements of the VCAA require VA to notify the 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, VA will attempt to obtain.  

The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the Veteran submitted his claim for increase in October 2008.  He was sent a letter in December 2008 which advised him of the information and evidence necessary to substantiate his claim.  That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the December 2008 letter was sent to the Veteran prior to the initial adjudication of the claim in April 2009, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In short, VA has complied with its duty to notify the Veteran in this case.

The Board acknowledges the written argument of the Veteran's representative and the assertion therein that a remand is warranted to provide notice compliant with a decision of the Veterans Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  Specifically, the representative cited that case as requiring that the VCAA notice must inform the claimant that: 

(1) to substantiate an increased-rating claim, the evidence must demonstrate "a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life" and (2) that if an increase in the disability is found, the rating will be assigned by applying the relevant Diagnostic Codes (DC) based on "the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life." The notice must also provide examples of the types of medical and lay evidence that may be obtained or submitted. 

Notwithstanding the representative's objections, the Board finds that the December 2008 notice is sufficient to comply with the VCAA and that remand is not necessary.  The Veterans Court decision in Vazquez-Flores was vacated on appeal to the Federal Circuit.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The Federal Circuit specifically held that veteran-specific notice is not required, that advance provision of applicable diagnostic codes is not required, and that notice that a claimant could submit evidence of the effect of the disability on the claimant's daily life was not necessary.  

The December 2008 notice letter informs the Veteran of the kind of evidence that is necessary to substantiate a claim for an increased rating, provides examples of this kind of evidence, informs him of the kinds of evidence VA will obtain on his behalf, and the kinds of evidence he is responsible for submitting, and informs him of the kinds of evidence considered in establishing disability ratings and effective dates.  The Veteran has been provided adequate notice and no additional development is necessary.  Further, in light of the grant of this claim, it is unclear what additional development of this case, in light of the notice letter, would achieve.  The Board finds no prejudice to the Veteran in proceeding. 

The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's written assertions.

In addition, the Veteran was afforded a VA examination in January 2012 to address the manifestations and severity of his service-connected hearing loss.  This examination is adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The report includes findings that are pertinent to the rating schedule, and which describe the effect of the disability on the Veteran's daily life.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); Martinak, 21 Vet. App. at 455.


ORDER

Prior to April 19, 2012, a disability rating for left ear hearing loss in excess of 10 percent is denied.

Since April 19, 2012, a disability rating for bilateral hearing loss of 80 percent, but not higher, is granted.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs