Citation Nr: 1335177 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-40 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating prior to March 18, 2013, and a 10 percent rating thereafter, for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to January 1969. He also had a period of active duty for training (ACDUTRA) from February 1963 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of that hearing is included in the claims file. The issue of entitlement to an initial compensable rating for bilateral hearing loss was before the Board in January 2013, and was remanded for further development. While the claim was in remand status, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 10 percent for bilateral hearing loss, effective March 18, 2013. Because a disability rating of 10 percent does not represent the maximum rating available for the Veteran's disability, and because it does not cover the entire period from the initial grant of service connection, the propriety of the initial ratings remains an issue for appellate review, and the Board has identified the issue as listed on the cover page. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. Prior to October 18, 2012, the Veteran's bilateral hearing loss was manifested at worst by Level I hearing acuity in the right ear and Level V hearing acuity in the left ear. 2. Beginning October 18, 2012, the Veteran's bilateral hearing loss was manifested at worst by Level II hearing acuity in the right ear and Level V hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to October 18, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. The criteria for a rating of 10 percent, but no greater, for bilateral hearing loss beginning October 18, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). 3. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson, 12 Vet. App. 119. Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable 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 as measured by puretone audiometric tests. To evaluate the degree of disability resulting from service-connected hearing loss, the Schedule establishes eleven levels of impaired efficiency, numerically designated from Level I to Level XI. Level I represents essentially normal hearing acuity for VA compensation purposes, with hearing loss increasing with each level to the profound deafness represented by Level XI. 38 C.F.R. § 4.85, Tables VI, VII. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. 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). In this case, the Veteran underwent a VA audiological evaluation in January 2010, which showed that the pure tone hearing threshold levels at 1000, 2000, 3000, and 4000 Hertz were respectively 15, 45, 65, and 85 on the right; and 30, 75, 80, and 85 on the left. The results of that examination revealed an average puretone threshold hearing level of 53 dB for the right ear, and 68 dB for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 90 percent in the left ear. At the time, the Veteran chiefly complained of difficulty hearing his wife. Application of Table VI to these scores results in a Roman numeral designation of I for the right ear and III for the left ear. Also, while for the Veteran's left ear, pure tone threshold was 30 decibels at 1000 Hertz and 75 decibels at 2000 Hertz, application of Table VIa to the Veteran's left ear score results in a Roman numeral designation of V for that ear. Either combination, when applied to Table VII, results in a noncompensable (0 percent) for hearing impairment under DC 6100. There are no medical records or other indication that the Veteran's hearing loss was worse than testing showed on January 2010 VA examination prior to October 18, 2012. Thus, a compensable rating for bilateral hearing loss is not warranted prior to October 18, 2012. During his October 18, 2012, Board hearing, the Veteran testified that his hearing loss problems included others having to repeat themselves to him, especially when there was background noise, and not being able to clearly hear someone speaking in the back seat of his car. The Veteran also testified that his hearing loss had worsened since the January 2010 VA examination. The Veteran again underwent a VA audiological evaluation in March 2013, which showed that the pure tone hearing threshold levels at 1000, 2000, 3000, and 4000 Hertz were respectively 20, 50, 70, and 85 on the right; and 30, 70, 80, and 85 on the left. The results of that examination revealed an average puretone threshold hearing level of 56 dB for the right ear, and 66 dB for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. At that time, the Veteran reported hearing loss that typically interfered with word understanding in any type of competing noise, difficulty hearing other workers when there was background noise, and difficulty with telephone communication. The examiner stated that the Veteran's disability did not render him unemployable. Application of Table VI to these scores results in a Roman numeral designation of II for the right ear and III for the left ear. However, again, for the Veteran's left ear, pure tone threshold was 30 decibels at 1000 Hertz, and 70 decibels at 2000 Hertz. Application of Table VIa to the Veteran's left ear score results in a Roman numeral designation of V for that ear. The later combination, when applied to Table VII, results in a 10 percent rating for hearing impairment under DC 6100. While the Veteran's hearing loss was not measured as being to a compensable degree until the March 2013 VA examination, the Veteran asserted during his October 18, 2012, Board hearing that his hearing loss had worsened since his January 2010 VA examination. There are no audiological records or other evidence indicating that the Veteran's hearing loss, at that time, was not to the compensable level measured on March 2013 VA examination. However, the most recent examination only confirms what the Veteran told the Board. In effect, they confirm the Veteran's belief that his hearing had, in fact, become worse. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that, as of October 18, 2012, the Veteran's service-connected bilateral hearing loss warranted a 10 percent rating. However, there are no medical records or other evidence that the Veteran's hearing loss has at any point been worse than testing showed on March 2013 VA examination, and neither the Veteran nor his representative has identified any. Thus, a rating in excess of 10 percent for bilateral hearing loss is not warranted. The Board is aware that the Veteran may feel that his bilateral hearing loss is more disabling than his ratings reflect. The Veteran's lay assertions of decreased hearing, however, are insufficient to establish entitlement to a higher schedular rating for bilateral hearing loss because "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). Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). 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, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record does not reflect that the average industrial impairment from the Veteran's disability would be in excess of that contemplated by the assigned ratings. The Veteran's hearing loss disability has been manifested by loss of hearing acuity of the levels measured on January 2010 and March 2013 VA examinations. He has reported that his hearing loss has resulted in others having to repeat themselves, especially with background noise, difficulty understanding words in any type of competing noise, difficulty hearing other workers with background noise, and difficulty with telephone communication. However, such manifestations are reasonably contemplated by the schedular criteria for the Veteran's noncompensable and 10 percent ratings under DC 6100, which contemplate hearing loss disability of the nature and severity of that measured on the January 2010 and March 2013 VA examinations. The record does not reflect that the Veteran's bilateral hearing loss has caused impairment in earning capacity above what would be average for such disability. Also, the record does not reflect that the Veteran's hearing loss has been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Finally, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability. Rather, as late as the March 2013 VA examination, the Veteran has been noted to be working, and the March 2013 VA examiner specifically stated that the Veteran's disability did not render him unemployable. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, a compensable rating prior to October 18, 2012, for bilateral hearing loss is not warranted, a rating of 10 percent, but no greater, is warranted beginning October 18, 2012, and a rating in excess of 10 percent for bilateral hearing loss is not warranted. There is no basis for further staged rating of the Veteran's disability pursuant to Fenderson. As the preponderance of the evidence is against assignment of any higher rating than that already assigned, the benefit-of-the doubt doctrine is not applicable to that extent. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The award of service connection for bilateral hearing loss represented a substantiation of the Veteran's original claim, and thus the filing of a notice of disagreement with the initial rating did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Therefore, any defect as to notice is not prejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Moreover, the Veteran was notified of regulations pertinent to the establishment of a disability rating and an effective date in a June 2009 letter. Dingess/Hartman, 19 Vet. App. at 478. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records have been obtained. Also, the Veteran was provided VA examinations in January 2010 and March 2013. These examinations and their associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, the examination reports addressed the effects of the Veteran's hearing loss on his daily activities and overall functioning. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Moreover, in providing such adequate examination and opinion in March 2013, the AOJ substantially complied with the Board's January 2013 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the October 2012 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. The VLJ and the representative asked questions regarding the current nature and severity of the Veteran's hearing loss, including its impact on his everyday life. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. 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), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An initial compensable rating for bilateral hearing loss prior to October 18, 2012, is denied. A rating of 10 percent, but no higher, for bilateral hearing loss beginning October 18, 2012, is granted, subject to the laws and regulations controlling the award of monetary benefits. A rating in excess of 10 percent for bilateral hearing loss is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs