Citation Nr: 1615480	
Decision Date: 04/15/16    Archive Date: 04/26/16

DOCKET NO.  12-33 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1951 to May 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection and assigned an initial noncompensable rating for bilateral hearing loss, effective July 17, 2012. 

In January 2014, the Board remanded the claim for further development, to include scheduling the Veteran for a VA audiological examination.  Upon completion of the requested development, the AMC continued to deny the claim and issued a June 2014 supplemental statement of the case (SSOC).  The Board remanded the claim again in July 2014 for further action, to include obtaining outstanding records.  Upon completion of this development, the AMC continued to deny the claim as reflected in a March 2015 SSOC.

In June 2015, the Board remanded the claim for clarification of the results of a September 2013 VA audiological examination, and to afford the Veteran another VA examination. The AMC continued to deny the claim in a November 2015 SSOC and returned the matter to the Board for additional review.

This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDING OF FACT

The Veteran's bilateral hearing loss is manifested by Level II hearing acuity at worst in the right ear and Level III hearing acuity at worst in the 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 , 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide.  38 C.F.R. § 3.159 (2015). 

In a claim for an increased evaluation, the Court has held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been satisfied.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); 38 C.F.R. § 3.159(b)(3).  Therefore, in this circumstance VA does not have to provide additional VCAA notice concerning these "downstream" disability rating and effective date elements of the claim.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Rather, according to the holding in Goodwin and its progeny, 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.

A November 2012 SOC adjudicated this downstream claim after the Veteran had expressed his timely disagreement with the initial rating assigned for his bilateral hearing disability.  Therefore, he has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  Neither he nor his representative has alleged any prejudice with regard to the content or timing of the notice he was provided, certainly not shown that any such error is outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran with this claim by obtaining all potentially relevant records and providing an examination or obtaining a medical opinion when needed to assist in making a decision on the claim.  Here, to satisfy this additional obligation, the Veteran's VA records and identified private treatment records have been obtained and associated with the electronic file for consideration.

VA has also made extensive efforts to afford the Veteran adequate VA examinations to assess the severity of his claimed disability.  Notably, as directed by the January 2014 Board remand, the RO scheduled the Veteran for an audiological examination in February 2014.  Evidence shows that this examination was canceled because the Veteran withdrew his claim.  See the June 2014 CAPRI record.  In April 2014, VA sent the Veteran and his representative a letter notifying the Veteran that withdrawal of his claim required completion of VA Form 21-4138, and failure to return the form within 30 days would result in the continuance of his claim.  The Veteran did not return the form and the claim was further processed. 

In compliance with the July 2014 Board remand, the RO obtained missing September 2013 VA audiometric results and outstanding VA treatment records.  Then, as directed by the June 2015 Board remand, the RO obtained clarification of the September 2013 VA audiometric results, including an explanation of whether Maryland CNC speech discrimination testing was completed, and also scheduled the Veteran for another VA examination.

Evidence shows that the Veteran canceled his August 2015 VA examination and failed to report for his September 2015 VA examination.  See the September 2015 CAPRI record.

In September 2015, VA sent the Veteran and his representative a letter notifying him of his failure to report for his September 2015 VA examination.  VA requested that the Veteran notify VA of his intent regarding the examination, so that VA could reschedule the examination or move forward with the claim based on the evidence of record.  He did not do so.  In November 2015, the RO issued a SSOC, which specifically referenced the fact that the Veteran failed to report for his September 2015 examination.

The RO substantially complied with the Board's January 2014, June 2014 and June 2015 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). 

In light of the Veteran's failure to report to his rescheduled September 2015 medical examination, without explanation of his absence, and without a that his examination be rescheduled, the Board is convinced that further efforts to schedule the Veteran for a compensation and pension examination addressing his claim would be futile.  The Veteran's representative was copied on the correspondence to the Veteran and there is no evidence of an address change or returned mail.  The Board accordingly finds that a remand to afford the Veteran additional VA examinations is not required, and VA's duty to assist with respect to obtaining examinations or opinions as to the Veteran's claimed disabilities has been met.  38 C.F.R. § 3.159(c)(4) ;Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Board notes the representative's statement that there is no documented evidence that the Veteran was notified of his appointment, or any indication that the Veteran was notified that he missed his scheduled VA examination.  The burden is on VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination.  Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991).  The Board notes that although the Veteran's claims file does not contain a file copy of an actual notice letters from the VA Medical Center ("VAMC"), per standard VA practice, the Veteran's examination request reports are included in his file. Moreover, as indicated above, the Veteran was notified (and his representative was copied) of his missed appointment in September 2015 correspondence.  Under these facts, the Board finds that the presumption of regularity has not been rebutted.  

The Court of Appeals for Veterans Claims (the Court) has held that VA's duty to assist a claimant in developing the facts and evidence pertinent to a claim is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate.  38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. 	 § 3.655(c) applies to running awards, when the issue is continuing entitlement.  More specifically, when a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record.  See 38 C.F.R. § 3.655(b).

Although the record does not contain a current VA examination to address the initial rating claim for the bilateral hearing loss, the Board will proceed with a decision under the specific facts of this case.  As outlined above VA has made all reasonable efforts to assist in this appeal and made multiple attempts as documented in the prior remands of record to obtain evidence that would support the claim on appeal.

Merits of the Increased Rating Claim

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

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2015).

The Veteran's entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1.  If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a competent source.  Second, the Board must determine if the evidence is credible.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record.

The Veteran's bilateral hearing loss is currently evaluated under the provisions of 	
38 C.F.R. § 4.87, Diagnostic Code 6100.  The Ratings Schedule, under Diagnostic Code 6100, provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I though XI) for hearing impairment, established by a state licensed audiologist including a mandatory controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. 	
§ 4.85 (2015).  

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In August 2012, the Veteran underwent a VA audiological examination.  His puretone thresholds, in decibels, were as follows:

Frequency (Hz)
500
1000
2000
3000
4000
Right
10
20
60
70
60
Left
30
50
65
70
75

Average puretone thresholds were 53 decibels in the right ear and 65 decibels in the left ear.  Speech recognition scores, performed with the Maryland CNC test, were 84 percent in the right ear and 90 percent in the left ear.  The examiner indicated that Veteran had bilateral sensorineural hearing loss.

Applying the results of the August 2012 examination to Table VI reflects that the Veteran had Level II hearing loss in his right hear and Level III in his left ear.  A noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II with column III.  38 C.F.R. § 4.85 (2015).

A September 2013 VA audiological examination was conducted during a clinic visit; however, a November 2015 VA medical addendum opinion confirms that Maryland CNC speech discrimination testing was not completed. See the November 2015 VA medical addendum opinion.  See Savage v. Shinseki, 24 Vet. App. 259 (2011).  Therefore, these test results are not adequate for rating the disability.   

Since the Veteran canceled his February 2014 and August 2015 examinations, and failed to appear for his scheduled examination in September 2015 without offering any explanation for his failure to appear, the Board has no alternative but to evaluate the claim for increase based on the evidence of record, which does not support a higher rating for the service-connected bilateral hearing disability.  See 	 38 C.F.R. § 3.655(b).

For the foregoing reasons, the Board finds that the evidence does not support the assignment of a rating in excess of 0 percent for hearing loss.  Therefore, entitlement to an increased rating for the impairment associated with bilateral hearing loss is not warranted.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. 	 § 5107; 38 C.F.R. §§ 4.3, 4.7.

The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case.  38 C.F.R. § 3.321(b)(1) (2015).  The Veteran has not presented any evidence that his bilateral hearing loss results in a unique disability that is not addressed by the rating criteria.  The Veteran's bilateral hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the Veteran's level of disability and symptomatology.  As noted above, the Veteran's bilateral hearing loss is manifested by, at worst, Level II in the right ear and Level III in the left ear, hearing loss.  When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for hearing loss.  A rating in excess of the currently assigned rating is provided for certain manifestations of hearing loss, but the medical evidence reflects that those manifestations are not present in this case.  

Although VA has made several attempts to seek additional evidence regarding the severity of this disability and the functional impairment caused by this disability, as outlined above, the Veteran has failed to appear to multiple scheduled examinations and failed to appear to his last scheduled examination without providing good cause.  Under these facts, the Board finds that VA has considered this appeal under the facts of record and the evidence of record does not present a disability picture which warrants referral.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The criteria for a noncompensable rating for the Veteran's hearing loss more than reasonably describe his disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate.  Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation.  See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).


ORDER

A compensable rating for bilateral hearing loss is denied.


____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs