Citation Nr: 1757052 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-10 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss prior to May 4, 2014. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss beginning May 4, 2014. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army with active duty from June 1960 to June 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to May 4, 2014, the Veteran's bilateral hearing loss was manifested by level I hearing in his right ear and level IV hearing in his left year. 2. Beginning May 4, 2014, the Veteran's bilateral hearing loss has been manifested by level VIII hearing in right ear and level IX hearing in his left ear. CONCLUSIONS OF LAW 1. Prior to May 4, 2014, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. Beginning May 4, 2014, the criteria for a rating in excess of 50 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. 38 U.S.C. § 5103(a). Here, a letter sent to the Veteran in August 2012 plus additional development letters, satisfied the VCAA notice requirement for his increased rating claim because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the June 2015 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and post-service VA treatment records have been obtained and associated with the claims file and he has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran was provided examinations in connection with his claim in September 2012 and May 2014. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran was granted service connection for his bilateral hearing under Diagnostic Code 6100 for sensorineural hearing loss. See 38 C.F.R. § 4.85. A noncompensable rating was assigned and the Veteran filed a claim for an increase in his disability rating in June 2012. The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from 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. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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. Id. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 when an exceptional pattern of hearing loss is shown. During the period on appeal, the Veteran has been afforded two VA audiological examinations in connection with his claim for entitlement to an increased rating. His first examination was in September of 2012, and does not provide for a compensable rating for hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 65 65 65 LEFT 35 45 80 75 65 The average decibel loss in the right ear was 56.25 and the average decibel loss in the left ear was 66.25. Speech recognition ability, using the Maryland CNC test, was 92 percent in the right ear and 80 percent in the left ear. See, September 2012 VA examination. These audiological findings correspond to level I hearing in the right ear, and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table IV. Under Table VII, a designation of level I in one ear and IV in the other yields a 0 percent disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was most recent provided a VA audiological examination in May 2014. This examination does not provide for a rating in excess of 50 percent for hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 75 70 70 LEFT 35 40 75 65 70 The average decibel loss in the right ear was 65 and the average decibel loss in the left ear was 63 (62.5). Speech recognition ability, using the Maryland CNC test, was 44 percent in the right ear and 40 percent in the left ear. See, May 2014 VA examination. These audiological findings correspond to level VIII hearing in the right ear, and level IX hearing in the left ear. 38 C.F.R. § 4.85, Table IV. Under Table VII, a designation of level VIII in one ear and IX in the other yields a 50 percent disability rating, but no higher. 38 C.F.R. § 4.85, Diagnostic Code 6100. Consideration has been given to 38 C.F.R. § 4.86 for exceptional patterns of hearing impairment, but this section is not applicable to the Veteran's audiological findings from his August 2014 and March 2017 VA examinations. For both of these examinations, pure tone threshold levels were neither 55 decibels or higher at 1000, 2000, 3000, and 4000 Hertz, nor were they 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Board has considered the Veteran's lay statements regarding the severity of his hearing loss symptoms. The Board notes that while the Veteran is competent to testify regarding these symptoms as they are within the knowledge and observation of lay witnesses, compensation is determined by the mechanical application of Diagnostic Code 6100. While the Board is sympathetic to the Veteran's condition, lay testimony by itself is insufficient to determine the severity of hearing loss symptoms for compensation purposes. Moreover, since the issue of entitlement to an extraschedular rating has not been raised by the record, such consideration is not warranted at this time. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). ORDER Entitlement to a compensable rating for bilateral hearing loss prior to May 4, 2014, is denied. Entitlement to a rating in excess of 50 percent for bilateral hearing loss beginning May 4, 2014, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs