Citation Nr: 1341189 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 10-39 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased, compensable rating for bilateral hearing loss. 2. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from August 1966 to May 1968. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in pertinent part denying an increased evaluation for bilateral hearing loss. The jurisdiction of the appeal currently resides with the RO in North Little Rock, Arkansas. The Veteran testified at a hearing before the Board in August 2011. The Veteran was notified that the Veterans Law Judge who conducted the August 2011hearing was no longer employed with the Board, and by a signed June 2012 letter, the Veteran waived the opportunity of a new hearing before the Board. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's bilateral hearing loss, at its worst, was manifested by audiometric test results corresponding to a numeric designation of Level II for his right ear and Level III for his left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. § 4.85 , 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's June 2010 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's increased rating claim. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1) ; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the May 2009 letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability and the different types of evidence available to substantiate his claim for a higher rating. This letter also informed him of the general requirements to obtain a higher rating and the need to submit evidence of how such worsening affected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the Board remanded the Veteran's case in February 2012 to obtain VA treatment records and for the obtained March 2012 audiology examination. As such, there has been substantial compliance with the directives of the February 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA audiology examinations in June 2009 and March 2012, to ascertain the severity of his bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiners reviewed the Veteran's claims file including treatment records, and administered a thorough examination, allowing for fully-informed evaluation of the claimed disability. The March 2012 examiner appropriately noted the impact of the hearing loss on daily activities and employment. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). To date, the Veteran has not advanced an argument that the March 2012 audiology examination was deficient in this respect or that he was prejudiced thereby. Id. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also 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); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria. See 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent 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 audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second). The Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing. 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. This was accomplished in this case. Examinations are to be conducted without the use of hearing aids. Id. This was also done upon VA examinations addressed herein. VA treatment records document that the Veteran has been prescribed hearing aids. Upon VA audiology examination in furtherance of his claim in June 2009, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 45 40 30 35 45 37.5 LEFT 35 30 30 40 60 40 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 in the left ear. The examiner assessed mild to moderate sensorineural hearing loss, bilaterally, with excellent speech discrimination. The examiner found no impact of hearing loss on daily activities. The Veteran and his wife testified at a hearing before the Board in August 2011 that his hearing loss had increased in severity. He asserted that he had difficulty hearing others, and at times did not hear others when addressed. The Veteran's wife testified that the Veteran had difficulty hearing speech, such that he had to look at her to read her lips when she talked. The Veteran and his wife also addressed his professional work, which involved interacting with others, so that his hearing difficulties could cause difficulties at work. Upon hearing loss examination in March 2012, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 35 35 35 45 60 44 LEFT 35 35 35 50 65 46 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. The examiner assessed sensorineural hearing loss in the 500 to 4000 hertz range, bilaterally. The examiner also noted that the Veteran's bilateral hearing loss impacted daily activities, which, as reported by the Veteran, included difficulty understanding speech in noisy situations in general conversation, and difficulty with the television. Applying the June 2009 results to the Schedule reveals numeric designations of Level I, bilaterally. The March 2012 results demonstrate a numeric designation of Level II in the right ear and Level III in the left ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Schedule results in a noncompensable rating for bilateral loss under Diagnostic Code 6100, for both June 2009 and March 2012 results. The particular hearing loss patterns are not shown to warrant application of 38 C.F.R. § 4.86. The Board has considered the statements of the Veteran and his wife with regard to the Veteran's hearing loss disability and associated impacts on daily life, including difficulty with hearing others when addressed or in conversation. However, the assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate on a schedular basis. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). As noted above, the Veteran's audiometric findings result in no more than a noncompensable percent disability rating. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected bilateral hearing loss was evaluated pursuant to 38 C.F.R. § 4.85, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. The Veteran's bilateral hearing loss, at its worst, was manifested by audiometric test results corresponding to a numeric designation of Level II for his right ear and Level III for his left ear. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a noncompensable disability rating. Compensable evaluations are provided for bilateral hearing loss, but the medical evidence demonstrates that those manifestations are not present in this case. Moreover, in specific cases of hearing impairment, such as the Veteran's, the Schedule provides for exceptional patterns of hearing loss; however, the medical record does not show that the Veteran's bilateral hearing acuity meets the regulatory requirements for a pattern of exceptional hearing impairment. 38 C.F.R. § 4.86. With regard to functional impairment, the Veteran's speech discrimination abilities have been specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation. See Martinak, 21 Vet. App. at 455. The criteria for a noncompensable rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.85, Diagnostic Code 6100; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a compensable evaluation for bilateral hearing loss throughout the entire appeal period, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). . ORDER A compensable evaluation for bilateral hearing loss is denied. REMAND An April 2013 rating action granted service connection for diabetes mellitus, type II, and an initial rating of 20 percent for that disability was assigned. The Veteran's notice of disagreement to this decision was received in July 2013. A review of the claims file and the Veteran's records in Virtual VA show that no statement of the case has been issued with regard to this issue. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, the Board is required to remand the issue for RO issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claim should be returned to the Board if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). This matter must, accordingly, be remanded for issuance of a statement of the case. Accordingly, the case is remanded for the following action: Issuance of a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, is necessary. The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the April 2013 rating decision denying this claim must be filed. 38 C.F.R. § 20.202 (2013). If the Veteran perfects the appeal as to this issue, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs