Citation Nr: 1335083 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 12-05 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability rating for a left ear hearing loss disability. ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1962 to February 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran did not appear at a hearing before the Board, which was scheduled at his request. As there is no record of a timely request for postponement, the request for the hearing is deemed withdrawn. FINDING OF FACT Throughout the appeal period, the left ear hearing loss disability has been manifested by Level II hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for a left ear hearing loss disability have not been met at any time during the appeal. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. 4.85, Diagnostic Code 6100 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the initial rating claim, the RO provided pre-adjudication VCAA notice by letter, dated in September 2010 on the underlying claim of service connection. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating, following the initial grant of service connection. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was afforded a VA examination in December 2010. The VA examination included a review of the history of the disability and findings sufficient to rate the disability under the appropriate rating criteria. For these reasons, the examination is adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no evidence in the record since the last VA examination that shows a material change in the condition to warrant a reexamination. 38 C.F.R. § 3.327(a). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. In addition to VA's duty to make reasonable efforts to assist the claimant, Veterans may seek additional assistance in obtaining VA benefits from an accredited representative. In a letter in September 2010, the RO informed the Veteran of his right to seek assistance from a recognized Veterans Service Organization (VSO). The letter directed the Veteran to a website with a complete list of recognized VSOs and instructed the Veteran to consult his local telephone book for contact information. In a letter in November 2011, the Veteran stated that he was not computer literate and requested a list of VSOs with telephone numbers or local addresses. The RO sent the Veteran a VA Form 21-22, Appointment of Veterans Service Organization, with a list of VSOs in December 2011. The letter also stated that due to the volume of national and local organizations, they could not provide the local phone numbers and addresses for the listed VSOs. The letter instructed the Veteran to consult his telephone book for contact information. In January 2012, the Veteran indicated that he contacted the American Red Cross to act as his representative; however, a VA Form 21-22 was not received. The Veteran continued his request for a VSO in March 2012. As the RO has provided the Veteran with a list of VSOs, provided instructions on how to contact the VSOs, and provided the Veteran VA Form 21-22 for appointment of a representative, no further assistance under the duty to assist is mandated. REASONS AND BASES FOR FINDING AND CONCLUSION General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz , divided by four. The average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice- connected ear will be assigned a Roman Numeral designation of I. If the service-connected hearing loss is rated 10 percent or more, then the nonservice-connected hearing loss is rated on the basis of the results of audiometric testing for the ear. 38 C.F.R. § 3.383 and 38 C.F.R. § 4.85(f). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). Facts and Analysis The Veteran is competent to describe symptoms of impaired hearing loss, which is capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge is that which comes to the witness through the use of the senses.). In October 2010, on an audiogram by a private provider, speech discrimination testing was measured by the Northwestern University-6 (NU-6) word list. The examination did not include the Maryland CNC speech discrimination word test in accordance with 38 C.F.R. § 4.85 and the audiogram is inadequate to rate the left ear hearing loss. On VA audiological examination in December 2010. The puretone thresholds, in decibels, at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz for the left ear were 20, 50, 75, and 75, respectively. The puretone threshold average was 55. The speech discrimination score, using the Maryland CNC word list, was 88 percent. Applying the results to TABLE VI, the findings yield a numeric designation of Level II for the left ear as the puretone average of 55 is in the range between 50 and 57 and speech discrimination is 88 percent. Entering the resulting numeric designation of II for the left ear and I for the nonservice-connected right ear to Table VII yields a noncompensable or zero percent rating under Diagnostic Code 6100. As the service-connected left ear is noncompensable, the provisions of paired organs under 38 C.F.R. § 3.383 do not apply. And there is no exceptional pattern of hearing impairment as the threshold for the four frequencies are not 55 decibels or greater or is the threshold at 1000 Hertz or 30 decibels or less at 1000 Hertz and the threshold at 2000 Hertz is 70 decibels or more. As the preponderance of the evidence is against the claim for an initial compensable rating for a left ear hearing loss disability, the benefit of the doubt standard of proof does not apply. The Board has considered whether a staged rating is appropriate. Fenderson v. West, 12 Vet. App. 119, 126-27. However, the Veteran's hearing loss does not meet the criteria for a compensable rating at any time during the appeal period. As such, staged ratings are not warranted. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As the Veteran does not experience any hearing loss symptomatology not already encompassed in the rating criteria, the assigned schedular rating is therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER An initial compensable rating for a left ear hearing loss disability is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs