Citation Nr: 1336679 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 11-22 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kimberly A. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for bilateral hearing loss and awarded a 0 percent rating, effective December 30, 2009. FINDING OF FACT Right ear hearing loss is manifested, at most, by an average pure tone threshold of 25 decibels with speech discrimination of 98 percent; and left ear hearing loss is manifested, at most, by an average pure tone threshold of 21 decibels with speech discrimination of 96 percent. CONCLUSION OF LAW The criteria for the assignment of an initial compensable for bilateral hearing loss have not been met. 38 U.S.C.A. § 1110, 1155, 5103, 5103a, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3,4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notice has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in January 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2011 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits The Veteran is currently assigned an initial 0 percent rating for bilateral hearing loss pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of different ratings for different periods of time, based on facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999). Hearing loss is rated under Diagnostic Code 6100, which sets out the criteria for rating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Acevedo-Escobar v. West, 12 Vet. App. 9 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85 (2013). The provisions of §4.86 address exceptional patterns of hearing loss which are identified when each of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2013). Applying the regulations to the facts in this case, the Board concludes that the criteria for a compensable rating have not been met at anytime during the period on appeal. At a May 2010 VA audiological examination, the Veteran reported decreased hearing that had no affect on his daily activities. The examination showed puretone thresholds for the right ear of 5, 10, 5, 30, and 55 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, and for the left ear at the same frequencies of 5, 5, 10, 20, and 50. The results of the VA audiogram show an average puretone threshold of 25 decibels for the right ear and 21 decibels for the left ear. Speech recognition scores per Maryland CNC were 98 percent in the right ear and 96 percent in the left ear. Those VA audiometric findings warrant a numeric designation of Level I auditory acuity in both the right ear and left ears. 38 C.F.R. § 4.85, Table VI (2013). The point of intersection on Table VII shows a level of hearing loss consistent with a 0 percent rating. 38 C.F.R. § 4.85 (2013). The audiological results do not satisfy the criteria for a compensable rating due to any exceptional hearing loss pattern. 38 C.F.R. § 4.86 (2013). The Veteran has not indicated that his hearing loss has worsened since that examination. The above determinations are based on application of pertinent provisions of VA's rating schedule. At the May 2010 examination, the Veteran reported ringing in his ears and decreased hearing that had no affect on his daily activities. The Board finds that the rating criteria fully describe the symptoms of the Veteran's bilateral hearing loss disability on appeal and its level of severity, and provide for higher ratings. Therefore, the Board finds that the Veteran's service-connected disability and its manifestations are not exceptional. Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of higher ratings on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (2013). Therefore, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321 (2013). The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for hearing loss for any period on appeal and is against referral for extraschedular consideration. There is no reasonable doubt to be resolved as to this issue. Therefore, the appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs