Citation Nr: 1334943 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-24 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable initial disability rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Veresink, Patricia INTRODUCTION The Veteran had active service from August 1971 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a hearing before the undersigned Board member in November 2011. A transcript of that hearing has been associated with the claims folder. The Board remanded the issue for a VA examination and to obtain any outstanding medical records in March 2013. The Veteran was afforded an examination in April 2013. In a March 2013 letter to the Veteran, the RO requested a release to obtain any outstanding medical records. The Veteran did not submit any releases and did not provide the requested records. The Board wishes to emphasize that, "[t]he duty to assist in the "development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that the directives in the March 2013 remand directives were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The issue of service connection for vertigo, claimed as secondary to hearing loss, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's hearing manifested by no more than Level I hearing acuity bilaterally. 2. The Veteran's functional impairment includes difficulty hearing in adverse listening situations. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA call for 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) (2012). 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). The record shows that through a VCAA letters dated September 2009, November 2009, December 2009 and March 2013, the Veteran was informed of the information and evidence necessary to substantiate the claim. The Veteran was also advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. The case was readjudicated in May 2013. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence. No additional pertinent evidence has been identified by the Veteran. As discussed above, the VCAA provisions have been considered and complied with. 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. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. 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). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim. 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 fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms during the period on appeal. 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). Increased Rating - Hearing Loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the pure tone 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. 38 C.F.R. § 4.86(a). When the pure tone 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. The Veteran attended a private audiological assessment in September 2006. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 20 15 40 LEFT 10 15 10 10 Speech discrimination testing revealed 80 percent in the right ear and 100 percent in the left ear; however, it is unclear whether the Maryland CNC word lists were used. The Veteran attended another private audiological examination in October 2007. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 15 25 45 LEFT 10 10 15 30 Speech discrimination scores were 100 percent bilaterally; again, however, it is unclear whether the Maryland CNC word lists were used. In October 2009, the Veteran was afforded a VA examination. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 30 35 40 LEFT 35 30 35 35 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. The Veteran reported difficulty hearing and understanding speech. The examiner diagnosed mild sensorineural hearing loss. In April 2013, the Veteran underwent a VA examination. At that time, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 25 30 60 LEFT 20 25 25 35 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. The examiner noted that the Veteran's hearing loss could impact his ability to communicate in adverse listening situations; however it is not considered to be present to a disabling degree for the left ear and would not impact the Veteran's ability to be employed. As the audiological findings do not show pure tone thresholds at 55 decibels or more at each of the four specified frequencies and does not show 70 decibels or more at 2000 Hertz with 30 decibels or less at 1000 Hertz, the Board will not determine the Roman numeral designation for hearing impairment from Table VIA. Only Table VI will be used. 38 C.F.R. § 4.86. The Board notes that it is unclear whether the private audiograms used a Maryland CNC word list when determining speech discrimination scores. The regulation requires the use of Maryland CNC word lists for the controlled speech discrimination test. 38 C.F.R. § 4.85(a). Therefore, the Board may not use those scores when calculating the current level of severity of bilateral hearing loss. When applying the pure tone averages and speech recognition scores from October 2009 to Table VI, the Veteran is assigned a Level I bilaterally. When applying the pure tone averages and speech recognition scores from April 2013 to Table VI, Veteran is again assigned a Level I bilaterally. The Board then applies those levels to Table VII, which results in a 0 percent, noncompensable evaluation for the Veteran's bilateral hearing loss. The audiological examinations addressed the functional limitations related to hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiners in noted that the Veteran was having difficulty communicated in adverse listening situations. The examiners however found no impact on the Veteran's ability to be employed. Nevertheless, a compensable disability rating for bilateral hearing loss is not warranted based on any audiological findings of record that meet the regulatory requirements. For these reasons, the Board finds that the criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated at any time during the initial rating period. 38 C.F.R. § 4.85, Diagnostic Code 6100. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. In making this determination, the Board is cognizant of the holding of Martinak v. Nicholson, 21 Vet. App. 447 (2007). In that decision, the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted. The Court held that 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. Id. at 455. In this case, the Board acknowledges the Veteran's decreased hearing acuity. The Board notes that the Veteran was noted to have difficulty in less than ideal listening situations. These symptoms, however, are consistent with the assigned disability evaluations described above and are not "exceptional." Moreover, the Veteran has not asserted, and the Board has not found, any reason to doubt the accuracy of the audiological examinations. As the Veteran's hearing loss was appropriately measured, the Board finds that the Rating Schedule contemplates all aspects of his disability, so that referral for extraschedular consideration is not warranted. ORDER Entitlement to a compensable initial disability rating for bilateral hearing loss is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs