Citation Nr: 1337792 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-03 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for bilateral hearing loss. 2. Entitlement to an effective date earlier than May 4, 2010 for a grant of service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Richard E. Geyer, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from June 1945 to December 1946 and from February 1953 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the appellate period prior to April 4, 2012, the Veteran's bilateral ear hearing loss is manifested by no more than Level VIII for the right ear and Level VII for the left ear. 2. As of April 4, 2012 and prior to June 25, 2012, the Veteran's bilateral ear hearing loss is manifested by Level XI for the right ear and Level XI for the left ear. 3. As of April 4, 2012 and prior to June 25, 2012, the Veteran's April 4, 2012 examination in a Department of Veterans Affairs authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule. 4. As of April 4, 2012 and prior to June 25, 2012, the Veteran has a single service-connected disability of bilateral hearing loss rated as 100 percent and has additional service-connected disabilities of the lumbar spine and right lower extremity radiculopathy independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 5. As of June 25, 2012, the Veteran's bilateral ear hearing loss is manifested by no more than Level IX for the right ear and Level VII for the left ear. 6. The Veteran's January 1995 statement, submitted on a VA Form 9, is not a timely notice of disagreement because the most recent prior rating decision was issued in November 1987, and the December 1994 communication to which the Veteran's January 1995 statement responds is a development letter that did not adjudicate any issues and did not provide appellate rights. 7. In a December 1996 rating decision, the RO denied the Veteran's claim of service connection for bilateral hearing loss; later that month, he was provided notice of the December 1996 rating decision but did not appeal this determination. 8. The Veteran's application to reopen his claim of entitlement to service connection for bilateral hearing loss was received by VA on May 4, 2010. 9. In a rating decision dated in August 2010, the RO granted service connection for bilateral hearing loss, effective May 4, 2010, the date of receipt of the application to reopen the service connection claim. CONCLUSIONS OF LAW 1. For the appellate period prior to April 4, 2012, the criteria for an initial evaluation for bilateral hearing loss in excess of 50 percent are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. As of April 4, 2012 and prior to June 25, 2012, the criteria for an initial 100 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013). 3. As of April 4, 2012 and prior to June 25, 2012, the criteria for entitlement to special monthly compensation under 38 U.S.C.A. § 1114(k) are met. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a)(5) (2013). 4. As of April 4, 2012 and prior to June 25, 2012, the criteria for entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) are met. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i)(1) (2013). 5. As of June 25, 2012, the criteria for an initial evaluation for bilateral hearing loss in excess of 50 percent are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013). 6. The criteria for an effective date earlier than May 4, 2010, for a grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 5108, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). With respect to the claim for an earlier effective date, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). With respect to the claim for a higher initial disability rating, this claim arises from a disagreement with the initial disability rating that was assigned following the grant of service connection for bilateral hearing loss. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran was provided with adequate VA examinations in connection with his present claim in July 2010, April 2012, and June 2012 (with an October 2012 addendum). The Board finds that such VA examinations are adequate to decide the issue as they are predicated on a review of the complete record. Specifically, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Furthermore, the examiners fully described the functional effects caused by the Veteran's bilateral hearing loss. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Therefore, the Board finds that these examination reports are adequate for the purpose of deciding the claim on appeal regarding the Veteran's bilateral hearing loss. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Analysis: Initial Disability Rating for Bilateral Hearing Loss The Veteran contends in his January 2013 substantive appeal and elsewhere that he is entitled to a higher disability evaluation for his bilateral hearing loss. Specifically, he asserts that his speech discrimination scores from his April 2012 examination warrant a rating of 100 percent disabling. Additionally, the Veteran's son and sisters provided statements attesting to his hearing difficulty. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched against 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. When impaired hearing is service connected in one ear only, the non-service-connected ear will be assigned a designation of level I from Table VII. 38 C.F.R. § 4.85(f). The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. Following a review of the evidence of record, the Board finds that an initial 50 percent rating is warranted for the appellate period prior to April 4, 2012; an initial 100 percent rating is warranted as of April 4, 2012 and prior to June 25, 2012; and an initial 50 percent rating is warranted as of June 25, 2012. In a July 2010 VA examination, pure tone thresholds, in decibels, were as follows: July 2010 HERTZ 1000 2000 3000 4000 RIGHT 25 90 110 110 LEFT 20 90 95 100 The average decibel loss was 81 in the right ear and 76 in the left ear. Speech discrimination was noted to be 72 percent in the right ear and 72 percent in the left ear. The audiometry test results equate to Level VIII hearing in the right ear using Table VIA, when elevated by one numeral pursuant to 38 C.F.R. § 4.86(b). The audiometry test results equate to Level VII hearing in the left ear using either Table VI or Table VIA, when elevated by one numeral pursuant to 38 C.F.R. § 4.86(b). See 38 C.F.R. §§ 4.85, 4.86. Applying the percentage ratings for hearing impairment found in Table VII, Level VIII hearing in the right ear and Level VII hearing in the left ear does not result in a rating in excess of the current 50 percent. The VA examiner found that the Veteran's hearing loss results in difficulty communicating at work. In an April 2012 VA examination, pure tone thresholds, in decibels, were as follows: Apr. 2012 HERTZ 1000 2000 3000 4000 RIGHT 20 85 100 100 LEFT 20 See below 100 100 The average decibel loss was listed in the examination report as 76 in the right ear and 76 in the left ear; as such, and in light of the fact that puretone thresholds are measured in increments of five (5), the Board construes the "52" listed for the left ear at 2000 Hertz as a typographic error, and finds that the number "85" should appear there because that number is consistent with the average decibel loss for the left ear. Speech discrimination was noted to be 16 percent in the right ear and 16 percent in the left ear. The audiometry test results equate to Level XI hearing in the right ear using Table VI. The audiometry test results equate to Level XI hearing in the left ear using Table VI. See 38 C.F.R. §§ 4.85, 4.86. Applying the percentage ratings for hearing impairment found in Table VII, Level XI hearing in the right ear and Level XI hearing in the left ear results in a rating of 100 percent. The VA examiner found that the Veteran's hearing loss impacts his daily living in everyday situations, such that he can hardly hear the television, ordinary conversation, the doorbell, and "everything." Pursuant to Table VII, the finding of a 100 percent rating for hearing loss compels review of entitlement to special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a)(5). Special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a)(5) is warranted for the period as of April 4, 2012 and prior to June 25, 2012 because the Veteran's April 4, 2012 examination in a Department of Veterans Affairs authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule. The Board further finds that special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a)(5) terminates on June 25, 2012 because the VA examination results on that date show that the Veteran no longer qualifies as having bilateral hearing loss equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule. Moreover, the Veteran's additional service-connected disability ratings compels review of entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i)(1). Special monthly compensation under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i)(1) is warranted for the period as of April 4, 2012 and prior to June 25, 2012 because during that time the Veteran has a single service-connected disability of bilateral hearing loss rated as 100 percent and has additional service-connected disabilities of the lumbar spine and right lower extremity radiculopathy independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. The Board further finds that this special monthly compensation under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i)(1) terminates on June 25, 2012 because the VA examination results on that date show that the Veteran no longer qualifies as having a single service-connected disability rated as 100 percent and additional service-connected disabilities independently ratable at 60 percent or more. In a June 2012 VA examination, pure tone thresholds, in decibels, were as follows: June 2012 HERTZ 1000 2000 3000 4000 RIGHT 30 90 105+ 105+ LEFT 20 95 95 95 The average decibel loss was 82 in the right ear and 76 in the left ear. Speech discrimination was noted to be 64 percent in the right ear and 72 percent in the left ear. The audiometry test results equate to Level IX hearing in the right ear using Table VI, when elevated by one numeral pursuant to 38 C.F.R. § 4.86(b). The audiometry test results equate to Level VII hearing in the left ear using either Table VI or Table VIA, when elevated by one numeral pursuant to 38 C.F.R. § 4.86(b). See 38 C.F.R. §§ 4.85, 4.86. Applying the percentage ratings for hearing impairment found in Table VII, Level IX hearing in the right ear and Level VII hearing in the left ear does not result in a rating in excess of the current 50 percent. The VA examiner noted that the Veteran's hearing loss results in difficulty communicating with others and home and at work, and in difficulty listening to the television, telephone, and radio. In evaluating the Veteran's claim for a higher initial rating, the preponderance of the evidence is against the assignment of a rating in excess of 50 percent for bilateral hearing loss prior to April 4, 2012, and as of June 25, 2012. A 100 percent rating is warranted as of April 4, 2012 and prior to June 25, 2012. To the extent that the Veteran's hearing is impaired, his decreased hearing acuity is compensated by the schedular criteria; under the Rating Schedule a higher schedular rating can be awarded only when loss of hearing has reached a specified measurable level. Therefore, the preponderance of the evidence is against the claim both prior to April 4, 2012, and as of June 25, 2012; it follows that entitlement to a rating greater than 50 percent during those times is not warranted. The Board is cognizant of the October 2012 addendum opinion in which a VA audiologist opined that the speech recognition scores found in the June 2012 VA examination are more probative than those in the April 2012 examination. However, because the VA examiner acknowledged that she does not know whether the April 2012 examiner utilized the phonetically balanced maximum (PB Max) in determining the Veteran's speech recognition score, the Board attributes the benefit of the doubt to the Veteran and thus finds that both evaluations are valid as of the dates of the respective examinations. 38 C.F.R. §§ 4.3, 4.7 (2013). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral hearing loss, which include difficulty hearing. Consequently, the Board finds that the rating criteria are adequate to evaluate the bilateral hearing loss, and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has been in receipt of a TDIU since February 14, 2011, the date on which service connection became effective for his right lower extremity radiculopathy. The Veteran has not submitted evidence of unemployability due to his bilateral hearing loss. Thus, TDIU is not raised by the record. Analysis: Entitlement to an Effective Date earlier than May 4, 2010 for a grant of Service Connection for Bilateral Hearing Loss The Veteran contends in his January 2013 substantive appeal that an earlier effective date is warranted for his bilateral hearing loss because VA denied his claim for service connection for bilateral hearing loss in a December 1994 decision, and he responded with a timely VA Form 9 which should have been construed as a notice of disagreement. He further asserts that because VA did not issue a statement of the case in response to his notice of disagreement, his claim did not become final, but rather has remained pending. The Board finds that the Veteran's contentions are without merit. The Veteran's January 1995 statement, submitted on a VA Form 9, is not a timely notice of disagreement because the most recent prior rating decision was issued in November 1987, and the December 1994 communication to which the Veteran's January 1995 statement responds is a development letter, not a rating decision. Specifically, in December 1994 the Veteran wrote that "I am asking for [service-connected] disability on my hearing, and am willing to be examined." The RO responded later that month with a development letter in which it explained to the Veteran that his claim for service connection for a hearing condition had previously been denied, and new and material evidence was required in order to reopen his claim. This development letter is not a rating decision because it was not identified as such, and does not otherwise contain the substance of a rating decision, such as a description of evidence reviewed. Moreover, following receipt of the Veteran's VA Form 9 in January 1995, the RO issued another development letter in March 1995 explaining the need for new and material evidence to reopen the claim. Later in March 1995, the RO followed its second development letter with a rating decision denying the reopening of the Veteran's claim. The Veteran did not timely file a notice of disagreement with the March 1995 rating decision. Consequently, a statement of the case was not issued following receipt of the Veteran's January 1995 VA Form 9 because none was warranted, and the Veteran's claim has not remained pending. Cf. Jones v. Shinseki, 619 F.3d 1368 (Fed. Cir. 2010). Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which was received by VA on May 4, 2010. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C.A. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Id. at 1332. Thus, under the law, there is no basis to assign an earlier effective date for service connection for bilateral hearing loss. ORDER For the appellate period prior to April 4, 2012, an initial evaluation in excess of 50 percent for bilateral hearing loss is denied. As of April 4, 2012 and prior to June 25, 2012, an initial rating of 100 percent, but no higher, for bilateral hearing loss is granted, subject to the applicable criteria governing the payment of monetary benefits. As of April 4, 2012 and prior to June 25, 2012, entitlement to special monthly compensation under 38 U.S.C.A. § 1114(k) is granted, subject to the law and regulations governing payment of monetary benefits. As of April 4, 2012 and prior to June 25, 2012, entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) is granted, subject to the law and regulations governing payment of monetary benefits. As of June 25, 2012, an initial evaluation in excess of 50 percent for bilateral hearing loss is denied. Entitlement to an effective date prior to May 4, 2010 for service connection for bilateral hearing loss is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs