Citation Nr: 1340853	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  08-05 074	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.    

2.  Entitlement to an initial compensable rating for left ear hearing loss.


ATTORNEY FOR THE BOARD

S. Hoopengardner, Associate Counsel










INTRODUCTION

The Veteran had active duty service from March 1983 to February 1986 and from June 1987 to July 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for right ear hearing loss and granted service connection for left ear hearing loss and assigned a noncompensable zero percent rating.  

In May 2010, the Veteran appeared at a Travel Board hearing before a Veterans Law Judge who is no longer before the Board; a transcript of that hearing is of record.  The law requires that the Judge who held the hearing participate in making the final determination of the claim.  38 U.S.C.A. § 7107(c) (West 2012). Ordinarily, when a Judge is no longer available at the time of the decision, the Veteran is informed of this fact, and afforded an opportunity for another hearing.  In this case, however, the Veterans Law Judge who held the hearing in May 2010 had already remanded the appeal in September 2010 to afford the Veteran another Travel Board hearing, due to the short notice afforded to the Veteran prior to the hearing.  This satisfied VA's obligation to offer the Veteran another hearing; the Veteran would not be prejudiced by the unavailability of the Veterans Law Judge who heard his May 2010 testimony

The Veteran was then scheduled for another Travel Board hearing, to be held in April 2011.  The Veteran, however, contacted the RO and stated that he wished to reschedule his hearing because he wanted to obtain representation.  The Veterans Law Judge granted the motion to reschedule the hearing. See 38 C.F.R. § 20.704(d) (2011).  He was again scheduled for a Travel Board hearing, to be held in March 2012.  The Veteran failed to report for the hearing, without explanation or any request to reschedule.  The hearing request is therefore considered withdrawn.  38 C.F.R. § 20.704(d).

In April 2012, the Board remanded the issues of entitlement to service connection for right ear hearing loss and entitlement to an initial compensable rating for left ear hearing loss for further development, which has been completed, and the case has been returned to the Board for appellate consideration.

A review of the Virtual VA paperless claims processing system was conducted.


FINDINGS OF FACT

1.  The preponderance of the evidence is against finding that the Veteran has a right ear hearing loss disability as defined by VA regulations.

2.  By regulation, hearing impairment in the non-service connected right ear is at Level I under 38 C.F.R. § 4.85, Table VI (2013).

3.  Hearing impairment in the left ear is at Level I under 38 C.F.R. § 4.85, Table VI (2013).


CONCLUSIONS OF LAW

1.  The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).

2.  The criteria for a compensable rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100 (2013).
	




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

A notice letter, returned as acknowledged by the Veteran in February 2005, and letters dated November 2007 and May 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2012); 38 C.F.R. § 3.159(b) (1) (2013); Quartuccio at 187.  The notice letter returned as acknowledged by the Veteran in February 2005 informed the Veteran of what the information or evidence must show to substantiate his claim, how VA will help obtain evidence for his claim and what the Veteran needs to do.  The November 2007 letter informed the Veteran of what information or evidence was needed to support his claims, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain.  The November 2007 letter also explained how VA assigns disability ratings and effective dates.  An additional May 2008 letter provided more detailed information regarding the diagnostic criteria for hearing loss.  Although these last notices were delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the  supplemental statement of the case (SSOC).  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  Thus, there is no prejudice associated with the late notice.  With these letters, VA satisfied its duty to notify.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and relevant VA medical records have been associated with the claims file.  In addition, the April 2012 Board remand included instructions to obtain all relevant VA treatment records from January 2008 to the present.  VA Treatment records from the Sun City CBOC from the requested time period have been obtained and associated with the claims file.  As a result, there has been substantial compliance with the Board's remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998).   Finally, the Veteran has not identified any outstanding, relevant treatment records for VA to obtain.  

VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See 38 C.F.R. § 3.159(c) (4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran was provided with VA C&P audiological examinations in March 2005 and December 2007.  In April 2012, the Board remanded the Veteran's claim for a new VA audiological examination and pursuant to the Board's remand directive, the Veteran was afforded a new VA audiological examination in May 2012.  The Board finds that the May 2012 VA audiological examination is adequate upon which to base a decision with regard to the Veteran's claims for entitlement to service connection for right ear hearing loss and entitlement to an initial compensable rating for left ear hearing loss and that there has been substantial compliance with the Board's remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998). 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Service Connection for Right Ear Hearing Loss

Legal Criteria

The Veteran seeks service connection for right ear hearing loss. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110, 1131 (West 2012).

Generally, in order to establish direct service connection, three elements must be established.  There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).    

As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology.  See id., at 1376-77.  In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

For certain chronic disorders, including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2013).

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds 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 (2013).

Analysis 

The Veteran's DD-214 lists the Veteran's specialty as refrigeration and air condition systems technician and outboard engine mechanic.  The Veteran contends he was exposed to excessive noise while in-service which caused hearing loss in both ears.    

The Veteran was last afforded a VA audiological examination in May 2012.  The speech discrimination score was 100 percent for the right ear.  Puretone thresholds, in decibels, for the Veteran's right ear were:

 
HERTZ
 
500
1000
2000
3000
4000
RIGHT
20
15
15
20
30

As the speech discrimination score is higher than 94 percent, none of the puretone thresholds exceed 40 decibels, and three of the thresholds do not exceed 26 decibels, based on the May 2012 audiological examination, the Veteran fails to meet the threshold for impaired hearing under 38 C.F.R. § 3.385 (2013) in his right ear.
  
In addition to the May 2012 VA audiological examination, no other audiological examination of record, including within the one year presumptive period under 38 C.F.R. §§ 3.307 (2013), contain results that would meet the threshold for impaired hearing under 38 C.F.R. § 3.385 (2013) for the Veteran's right ear. 

As such, the Veteran does not meet the threshold requirement in establishing service connection, which is a diagnosis of a qualifying hearing loss disability in the right ear for VA benefit purposes.  Without a diagnosis of a current hearing loss disability in the right ear that meets the standards of 38 C.F.R. § 3.385 (2013), service connection cannot be granted for right ear hearing loss.

In reaching this conclusion, the Veteran's lay statements regarding his hearing loss have been considered.  There is no reason to doubt the credibility of the Veteran with respect to the fact that he has difficulty hearing, and the Veteran is competent to report difficulty hearing in his right ear.  However, he is not competent to state that his right ear puretone thresholds or speech recognition scores rise to levels sufficient to warrant a disability for VA purposes under 38 C.F.R. § 3.385 (2013).  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Accordingly, the Board has placed greater probative value on the May 2012 VA examination report that does not support a finding of a right ear hearing loss disability for VA purposes.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to service connection for right ear hearing loss must be denied.  See 38 U.S.C.A. § 5107(b) (West 2012); 38 C.F.R.     § 3.102 (2013).


III.  Initial Compensable Rating for Left Ear

Legal Criteria

The Veteran contends that a compensable rating is warranted for his service-connected left ear hearing loss.

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A.  § 1155 (West 2012); 38 C.F.R. Part 4 (2013).

Since the initial grant of service connection, the Veteran's hearing loss has been assigned a noncompensable (zero percent) rating.  In cases such as this, where the Veteran appeals the initial rating assigned for a service-connected disability, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results).
An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are to be conducted without the use of hearing aids.  

To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations.  The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  38 C.F.R. § 4.85 (2013).  This average is used in all cases to determine the Roman numeral designation for hearing impairment where the axes intersect.  Average puretone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis.  If impaired hearing is service-connected in only one ear, as in the instant case, in order to determine the percentage evaluation from Table VII, the non-service connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f) (2013).  The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100.

To warrant the assignment of a compensable rating for bilateral hearing loss, the evidence must show that the hearing loss rises to the requisite level of severity as proscribed in 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII (2013).

Analysis 

The Veteran was last afforded a VA audiological examination in May 2012.  Puretone thresholds, in decibels, for the Veteran's left ear were:

 
HERTZ
 
500
1000
2000
3000
4000
LEFT
20
15
15
45
50

The speech discrimination score was 100 percent for the left ear.  The puretone threshold average in the left ear was 31.  These results, when applied to 38 C.F.R.   § 4.85, Table VI (2013), correspond to a Level I designation for the left ear.  As previously discussed, since the Veteran's right ear is not service-connected for hearing loss, it is assigned a Level I designation.  38 C.F.R. § 4.85(f) (2013).  Under Table VII, Level I hearing in each ear warrants the assignment of a noncompensable zero percent rating for the Veteran's service-connected left ear hearing loss.  38 C.F.R. § 4.85 (2013).

In addition to the May 2012 VA audiological examination, no other audiological examination of record contains results that would meet the threshold for a compensable rating for the Veteran's left ear hearing loss.  In light of the audiological examinations of record, a compensable rating is not warranted for the service-connected left ear hearing loss at any time during the period of time covered by this claim.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).  The possibility of staged ratings was considered, however, there are no distinct periods of time where a compensable rating could be assigned based on the evidence of record.

In reaching this conclusion, the Veteran's lay statements regarding his hearing loss have been considered.  There is no reason to doubt the credibility of the Veteran with respect to the fact that he has difficulty hearing and the Veteran is competent to report difficulty hearing in his left ear.  The findings on examination are consistent with the Veteran's assertions that he has difficulty hearing.  The objective findings on examination, however, do not allow for the assignment of a compensable rating in this case.  The Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case.  The numeric designations in this case correlate to no higher than a noncompensable zero percent rating.  See 38 C.F.R. § 4.85, Tables VI-VII (2013).

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for entitlement to an initial compensable rating for left ear hearing loss must be denied.  See 38 U.S.C.A. § 5107(b) (West 2012); 38 C.F.R. § 3.102 (2013).

IV. Extra Schedular Consideration

Finally, the potential application of 38 C.F.R. § 3.321(b) (1) (2013) has also been considered.  See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  

The first of the three elements of an extraschedular rating under § 3.321(b) (1) is a finding of either the RO or the Board that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate."  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  In order to determine whether a disability is "exceptional or unusual," 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."  Thun, 22 Vet. App. at 115.  "[I]f the [rating] 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 referral is required."  Id.

Neither the first nor second Thun element is satisfied here.  The symptomatology and impairment caused by the Veteran's service-connected left ear hearing loss is contemplated by the rating criteria for hearing loss.  Other than the Veteran's previously service-connected bilateral tinnitus, there is no symptom or manifestation stemming from the hearing loss that is not currently considered in the rating criteria for rating hearing loss.  The Veteran has not described any other manifestation of the ears other than hearing loss and ringing of the ears, and there is no evidence of any ear disease.  All of the Veteran's symptoms and manifestations have been considered based on all available rating criteria pertinent to the ears.  In this case, comparing the Veteran's disability level and symptomatology of the hearing loss alone, to the rating schedule, the degree of disability throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.  In summary, there is nothing exceptional or unusual about the Veteran's left ear hearing loss because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet. App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present.  In particular, the Veteran does not contend, and the evidence of record does not suggest, that his left ear disability has caused him to miss work or has resulted in any hospitalizations.  Therefore, the Veteran's service-connected left ear disability does not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. § 3.321(b) (1) (2013).  Thus, even if the Veteran's disability picture was exceptional or unusual, referral would not be warranted.


ORDER

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to an initial compensable rating for left ear hearing loss is denied.




____________________________________________
Bethany L. Buck 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs