Citation Nr: 1340596 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-27 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to service connection for bilateral carpel tunnel syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in March 2011, a statement of the case was issued in October 2011, and a substantive appeal was received in October 2011. A March 2013 Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. Additional evidence has been submitted since the March 2013 hearing for which the Veteran has waived RO initial consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The results of audiometry testing do not meet the regulatory criteria for a compensable rating for bilateral hearing loss disability. 2. In March 2013, prior to the promulgation of a decision in the appeal, the Veteran submitted a request to withdraw his appeal with respect to service connection for bilateral carpel tunnel syndrome. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of zero percent for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, Part 4, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As the Veteran has withdrawn his appeal with respect to service connection for bilateral carpel tunnel syndrome, a discussion of the VCAA's impact on that claim is unnecessary. VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements must also apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). An August 2010 letter prior to the January 2011 rating decision explained the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identify relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the requirements the United States Court of Appeals for Veterans Claims set out in Pelegrini have been satisfied. The Veteran has received all essential notice, has had ample opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). At the March 2013 Travel Board hearing, the undersigned clearly explained the issues on appeal and gave the Veteran ample opportunity to present additional evidence. The record was held open for 60 days to allow the Veteran to submit an additional audiological examination including a Maryland CNC speech discrimination test. Accordingly, the Board finds that the duties mandated by 38 C.F.R. § 3.103(c)(2) are met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In any event, the Veteran has not demonstrated any prejudice with regard to the content 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). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). VA's duty to assist has also been satisfied. 38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2). Pertinent treatment records have been obtained, along with relevant lay statements. VA provided audiological examinations in September 2010 and April 2011, and the reports are included in the claims file. Both are adequate for rating purposes, as they reflect familiarity with the claims file and cite to objective medical evidence. The Veteran has not alleged, and the record has not otherwise shown, that the contents of any potentially outstanding treatment records would lend material support to his claim. Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board also acknowledges that during the March 2013 Travel Board hearing the Veteran stated his condition had worsened since his September 2010 examination. However, the Veteran underwent private testing in April 2013 and submitted the test results. The record thus now has medical evidence reflecting the severity of his disability after his assertion that it had worsened. Another examination is therefore not necessary. VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Factual Background, Legal Criteria, and Analysis Initially, the Board notes that it may dismiss any appeal which fails to allege specific error of fact or law. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved at any time before the Board promulgates a decision by the appellant or an authorized representative. 38 C.F.R. § 20.204. Here, the Veteran indicated his intent to withdraw his appeal with respect to the claim of service connection for bilateral carpel tunnel syndrome in a March 2013 correspondence prior to a Board decision. Accordingly, the Board finds no remaining allegations of factual or legal error, and must dismiss the appeal with respect to the matter of reopening a claim of service connection for a back disability. VA regulations allow for the assignment of an increased rating up to one year prior to the receipt of a formal claim for increase when it is factually ascertainable that an increase had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). Therefore, the rating period on appeal extends back to August 2009, one year prior to the Veteran's August 2010 claim. 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. The Veteran's bilateral hearing loss is rated under 38 C.F.R. § 4.85, under which disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA regulations require that an examination for hearing impairment for VA purposes be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. Examinations must be conducted without the use of hearing aids. Id. at (a). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone 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 results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. The Veteran received a private audiological examination from Dr. Ben Dawsey, Jr., in July 2010 that is inadequate for rating purposes, as a November 2011 letter confirmed that the examination did not include a Maryland CNC speech discrimination test. On authorized audiological evaluation in September 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 40 65 75 80 LEFT -- 30 60 75 80 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 84 in the left ear. Average auditory thresholds were 65 in the right ear and 61 in the left ear. These numbers translate into Roman numeral designations of III bilaterally. 38 C.F.R. § 4.85, Table VI. Applying 38 C.F.R. § 4.85, Table VII, the Veteran's hearing loss is rated as zero percent disabling. On authorized audiological evaluation in April 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 45 70 80 85 LEFT -- 35 65 75 85 Speech audiometry revealed speech recognition ability of 84 percent in both ears. Average auditory thresholds were 70 in the right ear and 65 in the left ear. These numbers translate into Roman numeral designations of III bilaterally. 38 C.F.R. § 4.85, Table VI. The examiner reported that the hearing loss had significant effects on his occupation. Applying 38 C.F.R. § 4.85, Table VII, the Veteran's hearing loss is rated as zero percent disabling. On private audiological evaluation by Dr. Ben Dawsey, Jr., in April 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 45 60 70 85 LEFT -- 35 65 75 80 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 92 in the left ear. Average auditory thresholds were 65 in the right ear and 64 in the left ear. These numbers translate into Roman numeral designations of IV for his right ear, and II for his left ear. 38 C.F.R. § 4.85, Table VI. Applying 38 C.F.R. § 4.85, Table VII, the Veteran's hearing loss is rated as zero percent disabling. It is clear from the evidence of record that a rating in excess of zero percent for bilateral hearing loss is not warranted. As noted previously, because assignment of disability ratings for hearing impairment are derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, 3 Vet. App. 345; 30 C.F.R. § 4.85, Tables VI-VII, Diagnostic Code 6100. Accordingly, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating for bilateral hearing loss at this time. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Should the Veteran's hearing loss disability increase in severity in the future, he may always file a claim for an increased rating. Extraschedular Considerations In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Code for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER The claims of entitlement to service connection for bilateral carpal tunnel syndrome are dismissed. A compensable rating for bilateral hearing loss disability is not warranted. The appeal as to this issue is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs