Citation Nr: 1335404 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-37 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable disability rating for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from December 1956 to December 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which continued the Veterans noncompensable evaluation for a bilateral hearing loss disorder. FINDING OF FACT Adequate and qualifying tests show that bilateral hearing loss was manifested by no worse than Level IV on the right and Level I on the left; there is no evidence of an exceptional disability picture sufficient to render the Rating Schedule inadequate. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2002); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2013). The Veterans Claim Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A February 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1) (2012). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an August 2010 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Circ. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran identified private treatment records with the Lansing Hearing Center, but in April 2010 he reported that the facility closed and that he had no means of contacting them. The Veteran's VA treatment records and the remaining identified private treatment records have been obtained. 38 U.S.C.A. § 5103A (West 2002), 38 C.F.R. § 3.159 (2012). The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2) (2012). A VA audiological examination was provided in February 2010; the test scores provide the needed information for the Board to make an informed determination. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Principles of Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of the two disability evaluations shall be applied, the higher is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Criteria: An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test for specified frequencies. 38 C.F.R. § 4.85 . Evaluations of bilateral 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 level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined 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). II. Facts VA and private treatment records indicate that the Veteran received ongoing treatment for his bilateral hearing loss. VA treatment records note that the Veteran complained of decreased hearing acuity in July 2009 and that he was referred for a hearing aid adjustment. A subsequent August 2009 audiogram conducted by Michael Raff, a private audiologist, revealed the following: Right Ear 1000 Hz 2000 Hz 3000 Hz 4000 Hz Air 40 50 Not conducted 65 Bone 35 45 Not conducted 60 Left Ear 1000 Hz 2000 Hz 3000 Hz 4000 Hz Air 20 40 Not conducted 55 Bone 15 35 Not conducted 45 The August 2009 audiogram results revealed speech discrimination scores of 68% for the right ear and 72% for the left ear; however, the results did not indicate that the Maryland CNC word list was used. The audiologist reported that the Veteran experiences moderate bilateral sensorineural hearing loss and recommended Phonak hearing aids. On VA examination in February 2010, the Veteran reported that he was unable to hear well; he denied a family history of ear disease. Physical examination revealed that the Veteran's auricles and external ears were within normal limits bilaterally. The results of the audiogram were as follows: Right Ear 1000Hz 2000 Hz 3000 Hz 4000 Hz Air 50 55 60 70 Bone 50 55 60 70 Left Ear 1000 Hz 2000 Hz 3000 Hz 4000 Hz Air 30 55 60 75 Bone 30 55 60 70 The examiner opined that the air conduction study, which revealed a greater loss of hearing acuity, is a better reflection of the Veteran's hearing loss than the bone conduction study. Speech recognition tests performed with the Maryland CNC word list resulted in 80% speech recognition in the right ear and 94% speech recognition in the left ear. The examiner, a doctor of audiology, diagnosed the Veteran with moderately severe bilateral hearing loss and remarked that the Veteran's bilateral hearing loss should not affect his daily activities or occupational functioning. In support of his current claim for increase, the Veteran submitted a detailed personal statement regarding the onset and severity of his condition dated July 2007; additional treatment records from Dr. Tumanut for the period covering June 2002 to October 2008; and additional VA treatment records for the period covering July 2007 to November 2007. The records are not pertinent to the current claim. III. Analysis Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran contends that his bilateral hearing acuity worsened which resulted in the issuance of new hearing aids. The Veteran submitted an audiogram from Michael Raff, a private audiologist, dated August 2009 in support of his claim for an increased rating. The audiogram results did not include the puretone threshold loss at 3000 hertz and the report does not reflect that the Maryland CNC test was utilized, as required by VA regulations. See 38 C.F.R. § 4.85(a). VA regulations require an average for puretone thresholds at 1000, 2000, 3000, and 4000 Hz; however, puretone threshold results were not conducted at 3000 Hz for the 2009 audiology report. The lack of testing conducted at 3000 Hz cannot be remedied by seeking clarification from the private audiologist because puretone threshold results at 3000 Hz were not conducted contemporaneously with the 2009 audiology report and are thus not obtainable. Although it is "unclear" whether the Maryland CNC test was utilized during the August 2009 audiogram, clarification is not necessary because the audiogram is otherwise incomplete for VA purposes and cannot be remedied through clarification. Savage v. Shinseki, 24 Vet. App at 260 (2011). The sole relevant, probative, and adequate evidence of record consists of a February 2010 VA audiometric examination. The February 2010 examination results reveal an average puretone threshold of 58.75 in the right ear and an average puretone threshold of 55 in the left ear. There are no factors requiring the use of Table Via. When the puretone threshold averages are combined with the speech discrimination scores of 80% for the right ear and 94% for the left ear, the results equate to Level IV hearing in the right ear and Level I in the left ear. See 38 C.F.R. 4.85, Table VI. When applied to Table VII percentage ratings for hearing impairment, the rating is noncompensable. Extraschedular Consideration The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's service-connected bilateral hearing loss is primarily manifested by difficulties participating in conversations. The Veteran's disability picture is contemplated by the rating schedule, the assigned scheduler evaluation for the service-connected bilateral hearing loss is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Entitlement to a compensable disability rating for bilateral hearing loss is not warranted. The evidence or record is unclear regarding whether the Veteran is currently working; however, neither the Veteran nor the record suggests that the that the Veteran's hearing disability results in unemployability. Accordingly, consideration of a total disability rating based on unemployability is not warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a compensable disability rating for a bilateral hearing loss disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs