Citation Nr: 1336974	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-06 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an initial compensable evaluation for bilateral hearing loss.

2.  Entitlement to service connection for ischemic heart disease associated with herbicide exposure.


REPRESENTATION

Appellant represented by:	Paul D. Bradley


ATTORNEY FOR THE BOARD

A. Solomon, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1967 to June 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a  June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted the Veteran's claim for entitlement to service connection for bilateral hearing loss with a noncompensable evaluation effective March 6, 2009.  The appeal also arises from a June 2013 rating decision from the Oakland, California RO which denied entitlement to service connection for ischemic heart disease associated with herbicide exposure.  The Veteran has filed a Notice of Disagreement (NOD) with that decision, and the Board is remanding that claim for the RO to issue a Statement of the Case (SOC).  See Manlincon v. West, 12 Vet. App. 238 (1999).  The case is currently under the jurisdiction of the RO in Oakland, California.   

The issue of entitlement to service connection for ischemic heart disease associated with herbicide exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained.

2.  The Veteran has demonstrated no worse than Level I hearing impairment in his right ear and Level III hearing impairment in his left ear.





CONCLUSION OF LAW

The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, Diagnostic Code 6100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must inform the Veteran about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

In addition, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection for bilateral hearing loss.  As noted above, in Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection for bilateral hearing loss was granted was legally sufficient, VA's duty to notify has been satisfied.

In addition, the duty to assist the Veteran has been satisfied in this case.  All available relevant evidence pertinent to the issue on appeal is in the claims file including the Veteran's service treatment records, VA treatment records, and the Veteran's statements in support of his claim.  The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing reflects that he has indicated the existence of any relevant evidence that has not been obtained or requested. 

In addition, the Veteran was afforded a VA audiological examination with respect to his claim.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the May 2009 VA examination report is adequate.  The examiner reviewed the claims file, solicited a history from the Veteran, and conducted an examination.  The audiology examiner provided the medical information necessary to address the rating criteria at issue in this case.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Moreover, the Board concludes that the May 2009 VA audiology examination report describes the functional effects of the Veteran's bilateral hearing loss disability in that it notes that the Veteran has the greatest difficulty hearing conversations in noisy areas.  In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that even if an audiologist's description of the functional effects of the appellant's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  There has been no assertion of any such deficiency.  Consequently, the VA examination is adequate. 

Neither the Veteran nor his representative has alleged that the Veteran's bilateral hearing loss disability has increased in severity since the May 2009 VA examination.  Therefore, a new VA examination is not required.  See 38 C.F.R. § 3.159 (2013); VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination).  The May 2009 VA examination report is thorough and provided findings pertinent to the rating criteria.  Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of additional examinations would be redundant and unnecessary.  See 38 C.F.R. §§ 3.326, 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991).  Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.





II.  Increased Initial Rating

The Veteran contends that he is entitled to an initial compensable disability rating for bilateral hearing loss.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  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.  38 C.F.R. § 4.7 (2013).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2013).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection is most probative of the degree of disability existing at the time that the initial rating was assigned, and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85(e) (2013). 

The provisions of 38 C.F.R. § 4.86(a) provide that 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.  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

Service connection for bilateral hearing loss was granted in a June 2009 rating decision.  A noncompensable evaluation was awarded, effective March 6, 2009.

The medical evidence of record consists of the May 2009 VA examination report.  The VA audiological examination report notes that the Veteran complained of difficulty hearing conversations in noisy areas.  Pure tone thresholds, in decibels, were as follows:




HERTZ




500
1000
2000
3000
4000
 Average
RIGHT
20
25
55
60
80
  55
LEFT
20
45
60
65
85
  63.75

On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 55 decibels.  His pure tone threshold average for the left ear was recorded as 63.75 decibels.  His speech recognition ability was 92 percent in the right ear and 88 percent in the left ear using the Maryland CNC speech recognition test.  These scores correlate to auditory acuity level I on the right and level III on the left, under Table VI of 38 C.F.R. § 4.85.  A noncompensable rating is warranted under Diagnostic Code 6100 when the auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. 

Consideration has also been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the May 2009 examination findings.  Pure tone threshold levels were neither 55 dB or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 hertz, nor were they 30 dB or less at 1000 hertz and 70 dB or more at 2000 hertz. 38 C.F.R. § 4.86(a) and (b). 

The Board notes that in Martinak, the Court held that, relevant to VA audiological examinations, 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.  In the present case, the May 2009 audiologist's report reflects that the Veteran's current symptoms include difficulty hearing conversations in noisy areas.  The audiologist also made notations that there were no significant effects on occupation or on usual daily activities.  Such notations indicate that the examiner did elicit information from the Veteran concerning the functional effects of his disability as required by 38 C.F.R. § 4.1, 4.2, 4.10.  See Martinak, 21 Vet. App. 447 (2007).

In conclusion, an initial compensable rating for the Veteran's bilateral hearing loss is not warranted.  The May 2009 VA audiology examination report indicates that the Veteran does not meet the criteria for an initial compensable rating for bilateral hearing loss.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49, 54-56  (1990). 

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2013). 

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.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  As discussed above, there are higher ratings available under the applicable diagnostic code, but the Veteran's bilateral hearing loss disability is not productive of such manifestations.  There is no suggestion in the medical evidence that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology.  There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards.  Although the Veteran is currently unemployed, such unemployment has not been noted to be because of his hearing loss disability.  As such, it cannot be said that the available schedular evaluation for the Veteran's bilateral hearing loss disability is inadequate. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral hearing loss under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his bilateral hearing loss renders him totally unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised in connection with his claim for entitlement to an initial compensable rating for bilateral hearing loss.

In conclusion, the preponderance of the evidence is against the claim for an initial compensable evaluation for bilateral hearing loss, the benefit of the doubt rule is not applicable, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 


ORDER

An initial compensable rating for bilateral hearing loss is denied.


REMAND

Reason for Remand: To issue a Statement of the Case.

In a June 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office in Oakland, California denied the Veteran's claim for entitlement to service connection for ischemic heart disease associated with herbicide exposure.  The Veteran submitted a Notice of Disagreement with this rating decision, which was received by VA in July 2013.

When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).  Therefore, the issue of entitlement to service connection for ischemic heart disease associated with herbicide exposure must be remanded for the issuance of an SOC and to give the Veteran the opportunity to complete an appeal.  38 U.S.C.A. § 7105; 38 C.F.R. § 19.26;  See Manlincon v. West, 12 Vet. App. 238 (1999).      

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case addressing the issue of entitlement to service connection for ischemic heart disease associated with herbicide exposure.  The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect to that issue.  The RO is free to undertake any additional development deemed necessary with respect to that issue.   

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs