Citation Nr: 1338788 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-08 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for service-connected left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1973. This appeal to the Board of Veterans' Appeals (Board) is from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for left ear hearing loss and assigned an initial 0 percent (i.e., noncompensable) rating for it retroactively effective from September 28, 2006, the date of receipt of this claim. Conversely, the RO denied service connection for right ear hearing loss. Regarding the former, the Veteran is contesting the initial zero percent disability rating for his left ear hearing loss and, as to the latter, he is disputing the denial of service connection for right ear hearing loss. In January 2012 the Board remanded these claims for further development and consideration, which since has been accomplished, but the Appeals Management Center (AMC) continued to deny them, so they are again before the Board. FINDING OF FACT 1. The Veteran has Level I hearing loss in his left ear. 2. He does not have sufficient hearing loss in his right ear to be considered a ratable disability by VA standards. CONCLUSIONS OF LAW 1. The criteria are not met for an initial compensable rating for his service-connected left ear hearing loss. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2013). 2. It is not shown he has a ratable right ear hearing loss disability, much less on account of disease or injury incurred in or aggravated by his military service or that may be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, in part, describes VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Ideally, this notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits and must: (1) inform him of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service-connection claims, so as concerning the claim for right ear hearing loss, this § 5103(a) notice also should advise him of the "downstream" disability rating and effective date elements of the claim, in the eventuality service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The claim for a higher initial rating for the left ear hearing loss arises from disagreement with the initial rating assigned following the granting of service connection for this disability. The courts have held that once service connection is granted the claim as it arose in its initial context has been substantiated, so additional VCAA notice concerning the "downstream" disability rating and effective date elements of the claim is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement (NOD)); VAOPGCPREC 8-2003 (wherein the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of cases and precedent General Counsel opinion, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. The RO provided the Veteran this required SOC (also since has provided him a supplemental SOC (SSOC)) citing the applicable statutes and regulations governing the rating for his now service-connected left ear hearing loss and containing discussion of the reasons and bases for not assigning a higher initial rating for this disability. He therefore has received all required notice concerning this claim. As to his service-connection claim regarding his purported right ear hearing loss, the notice letter sent in October 2006 described the information and evidence not of record that was necessary to substantiate this claim and advised him of his and VA's respective responsibilities in obtaining the necessary supporting evidence. The letter also provided notice regarding disability ratings and effective dates as mandated by Dingess. So he also has received the required notice concerning this claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim - unless no reasonable possibility exists that such assistance would aid in the substantiation of the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, irrespective of whether the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). To this end, VA has obtained the Veteran's service treatment records (STRs), post-service VA clinical records, personal statements, and VA medical examination reports of evaluations performed regarding each disability at issue. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA findings obtained in this case are adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. The VA examiners considered all of the pertinent evidence of record, including all relevant evidence in the claims file and the Veteran's personal statements. Accordingly, the Board finds that VA's duty to assist insofar as obtaining VA examinations or opinions with respect to these claims has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating - Left Ear Hearing Loss Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. And, as already alluded to, all reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Because this appeal is from the initial rating assigned following the granting of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must also be considered. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating this will compensate the Veteran for the varying level of severity of his disability since the effective date of his award). The Veteran's service-connected left ear hearing loss has been rated, at least initially, as zero-percent disabling under 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing range from zero to 100 percent. This is 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 audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII [Percentage Evaluations for Hearing Impairment], the non-service connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). If hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more, compensation is payable for hearing impairment in both the service-connected and non-service-connected ears if hearing impairment in the non-service-connected ear is a ratable disability by VA standards, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385. 38 C.F.R. § 3.383(a)(3). But as will be discussed, this is not shown here, as the hearing loss in the Veteran's service-connected left ear is not compensable to a degree of 10 percent or more; instead, it is noncompensable, i.e., 0-percent disabling. So he is not entitled to the benefit of 38 C.F.R. § 3.383(a)(3). Therefore, for all intents and purposes, the Board must consider the hearing impairment in his non-service-connected right ear as Level I. There are other qualifiers for exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a). Also, When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher number. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Turning now to the relevant facts of this particular case. On VA examination in January 2007, left ear pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 25 25 30 30 28 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. Those results represent Level I left ear hearing loss. On July 2009 VA examination, left ear pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 15 15 20 25 19 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. Those results again represent Level I left ear hearing loss. On July 2012 VA examination, left ear pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 20 25 25 30 25 Speech audiometry revealed speech recognition ability of 98 percent in the left ear. Those results, yet again, represent Level I left ear hearing loss. The July 2012 VA examiner opined that the Veteran's service-connected left ear hearing loss was not of the type that would hinder the average person from obtaining and maintaining gainful employment. So there was not suggestion the Veteran is derivatively entitled to a total disability rating based on individual unemployabilty (TDIU) because of this service-connected disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011). The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record fails to show that the Veteran is unemployable because of his left ear hearing loss, as the July 2012 VA compensation examiner affirmed, and a TDIU has been denied by the RO as recently as in February 2011. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. The Board also sees that an exceptional pattern of hearing impairment has not been shown at any time and that Table VI resultantly has been used throughout to determine the numeric designation of hearing impairment. 38 C.F.R. §§ 4.85, 4.86. For reasons already discussed, the Veteran also has Level I hearing loss in his non-service-connected right ear. 38 C.F.R. §§ 3.383, 4.85(f). Applying Level I and Level I hearing loss for the left and right ears, respectively, to Table VII, correlates to a zero percent disability rating. The Veteran's existing rating therefore is appropriate. To reiterate, the ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann, 3 Vet. App. at 349. There is no room for discretion, except, as also will be discussed, in contemplation of whether an extra-schedular rating is warranted under the special provisions of 38 C.F.R. § 3.321(b)(1). See also Martinak v. Nicholson, 21 Vet. App. 447 (2007). Moreover, since the Veteran has not met the requirements for a compensable rating at any point since the filing of his claim for this disability, the Board cannot "stage" this rating either. Fenderson, 12 Vet. App. at 125-26. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the July 2012 VA examiner noted in essence that there was no functional impairment caused by the Veteran's left ear hearing loss. The Board finds that functional impairment has been appropriately considered. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to VA regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). Fanning v. Brown, 4 Vet. App. 225, 229 (1993). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this particular Veteran's case, the Board recognizes and has considered his complaints of decreased auditory acuity and speech recognition impairment. The schedular rating criteria contemplate the limitations and impairment caused by his service-connected left ear hearing loss disability, however. His left ear hearing loss disability is not one that is rated by analogy, but, instead, has been evaluated under applicable Diagnostic Code 6100, the schedular rating criteria of which specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, and as measured by both audiologic testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. The fact that there may be occupational impact does not render the rating schedule inadequate to evaluate the level of disability. See 38 C.F.R. § 4.1. Because the schedular rating criteria are adequate to rate the Veteran's service-connected left ear hearing loss, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. Consequently, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Service Connection - Right Ear Hearing Loss Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing entitlement to direct service connection generally requires having: (1) competent and credible evidence confirming the existence of the claimed disability or, at the very least, showing the Veteran has had it at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally a showing of continuity of symptoms after service is required to support the claim and show the required linkage between the condition and service. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). This § 3.303(b) notion of continuity of symptomatology is applicable to the Veteran's claim since sensorineural hearing loss is a type of organic disease of the nervous system and therefore a chronic disease according to 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These per se chronic diseases also may be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within the initial year after service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309(a). The most fundamental requirement for any claim for service connection, however, is that the Veteran must have proof he has the condition claimed, else, there is no current or present-day disability to relate or attribute to his military service. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity. Namely, for purposes of applying the laws administered by VA, impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. So it is possible for a Veteran to have hearing loss, just insufficient hearing loss to be considered an actual ratable disability by VA standards. That said, to establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation or even during the one-year presumptive grace period after service allowing for sensorineural hearing loss, as an organic disease of the nervous system, to initially manifest to a compensable degree (meaning to at least 10-percent disabling), although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., 38 C.F.R. § 3.385 ), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley, 5 Vet. App. at 159. In deciding this claim, the Board has reviewed all the evidence in the Veteran's claims file, both his physical claims file and the electronic ("Virtual VA") portion of it. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in detail, certainly not exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). On January 2007 VA examination, right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 20 20 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. On July 2009 VA examination, right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. On July 2012 VA examination, right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The pure tone thresholds detailed above do not meet the criteria outlined in 38 C.F.R. § 3.385 for ratable hearing loss. Furthermore, right ear speech recognition scores have not been lower than 94 percent. Consequently, there is no ratable right ear hearing loss disability as defined by this VA regulation, and in the absence of confirmation the Veteran has this presently-claimed disability, service connection cannot be granted because there is no current disability to directly or presumptively associate with his service or even secondarily by way of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310, 3.385; Brammer, supra. This is not a case where the evidence for and against the claim is in relative equipoise. Rather, the competent and credible evidence, so the evidence that is ultimately probative, weighs against this claim of entitlement to service connection for right ear hearing loss. As such, the benefit of the doubt rule is inapplicable, requiring the denial of this claim. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. ORDER A compensable rating for the service-connected left ear hearing loss is denied. Also, service connection for right ear hearing loss disability is denied. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs