Citation Nr: 1801008	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-01 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss, prior to March 10, 2014.
2.  Entitlement to an increased rating for chronic otitis media, left ear, currently rated 10 percent disabling.

REPRESENTATION

Veteran represented by:	Michael James Kelly, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

Tiffany N. Hanson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1963 to April 1964.
This appeal before the Board of Veterans' Appeals (Board) arises from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
In a January 2010 rating decision, the RO denied a compensable rating for bilateral hearing loss.  In May 2010, the Veteran filed a notice of disagreement (NOD).  In December 2012, the RO furnished the Veteran a statement of the case (SOC).  In January 2013, the Veteran filed his substantive appeal (VA Form 9).  In a May 2014 rating decision, the RO increased the rating for bilateral hearing loss from noncompensable to 20 percent disabling, effective from March 10, 2014.  The Veteran perfected an appeal of the effective date assigned for the award of the 20 percent rating.  See July 2014 NOD; October 2015 SOC; November 2015 Substantive Appeal (VA Form 9).
By an April 2014 rating decision, the RO denied a rating in excess of 10 percent for chronic otitis media, left ear.  In July 2014, the Veteran filed a NOD.  In October 2015, the RO furnished the Veteran a SOC.  In November 2015, the Veteran filed his substantive appeal (VA Form 9).
In February 2017, the Veteran testified via videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record.  At the Board hearing, the Veteran, by and through his attorney, clarified that he was seeking a compensable rating for his bilateral hearing loss prior to March 10, 2014, and was satisfied with the 20 percent rating that has been assigned for this disability.
At the February 2017 Board hearing, the Veteran, by and through his attorney, raised the issue of entitlement to service connection for chronic headaches, as secondary to the service-connected chronic otitis media, left ear.  This discrete issue has not been adjudicated and developed by the RO and is referred to the RO for appropriate consideration in accordance with the regulations governing the filing of claims.  38 C.F.R. §§ 3.155, 19.9(b) (2017).

This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA claims processing systems.  Accordingly, any future consideration of the Veteran's case should be applied to those electronic records.
The issue concerning the timeliness of a February 28, 2017, NOD submitted in response to a February 2016 rating decision that assigned an initial 30 percent rating, following the grant of service connection, for non-specific chronic dizziness without known cause (claimed as vertigo) is addressed in the REMAND portion of this decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  Prior to March 10, 2014, the Veteran's hearing impairment showed no worse than Level II in the right ear and Level II in the left ear.
2.  The Veteran's chronic otitis media, left ear, is characterized by impairment comparable to that disorder during the continuance of the suppurative process.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating prior to March 10, 2014, for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.3, 4.7, 4.10, 4.85 (Tables VI and VII), 4.86, Diagnostic Code 6100 (2017).
2.  The criteria for a rating in excess of 10 percent for chronic otitis media, left ear, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6200 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)
VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
A.  Duty to Notify
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements 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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).
With respect to bilateral hearing loss, the appeal arises from the Veteran's disagreement with the initial noncompensable rating assigned following the grant of service connection for this condition.   Once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
With respect to otitis media, left ear, a standard February 2014 letter satisfied the duty to notify provisions.

B.  Duty to Assist
The duty to assist includes assisting the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The evidence associated with the claims file consists of the Veteran's service treatment records, post-service VA treatment records, and reports of VA examinations dated between February 2009 and March 2014.  No other relevant records have been identified or are outstanding.  VA has satisfied its duty to assist with the procurement of relevant records. 
II.  Initial Rating - Bilateral Hearing Loss Prior to March 10, 2014
The Veteran's service-connected bilateral hearing loss is currently assigned a disability rating of 20 percent under 38 C.F.R. § 4.85, Diagnostic Code 6100 as of March 10, 2014.  The Veteran contends that he is entitled to a compensable rating prior to March 10, 2014.
A.  Applicable Law
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86.
B.  Factual Background 
In conjunction with the current claim, the Veteran underwent VA examinations in February 2009, July 2009, October 2011, June 2012, and March 2014.  
Pure tone thresholds, in decibels, from audiometric testing in the February 2009 examination, for the frequencies of interest, in Hertz, were as follows:   


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
70
50
60
55
59
LEFT
45
40
65
75
56

Speech recognition scores based on the Maryland CNC Test were 96 percent in the right ear and 84 in the left ear.

Pure tone thresholds, in decibels, from audiometric testing in the July 2009 examination, for the frequencies of interest, in Hertz, were as follows:   



HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
65
40
55
60
55
LEFT
35
45
60
70
53

Speech recognition scores based on the Maryland CNC Test were 100 percent in the right ear and 100 in the left ear.

Pure tone thresholds, in decibels, from audiometric testing in the October 2011 examination, for the frequencies of interest, in Hertz, were as follows:   


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
55
55
65
80
64
LEFT
45
40
60
70
54

Speech recognition scores based on the Maryland CNC Test were 92 percent in the right ear and 96 in the left ear.

Pure tone thresholds, in decibels, from audiometric testing in the June 2012 examination, for the frequencies of interest, in Hertz, were as follows:   


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
75
50
65
70
65
LEFT
50
40
65
75
58

Speech recognition scores based on the Maryland CNC Test were 98 percent in the right ear and 94 in the left ear.

Pure tone thresholds, in decibels, from audiometric testing in the March 2014 examination, for the frequencies of interest, in Hertz, were as follows:   


HERTZ

1000
2000
3000
4000
AVERAGE
RIGHT
60
65
60
65
63
LEFT
60
55
65
75
64

Speech recognition scores based on the Maryland CNC Test were 96 percent in the right ear and 94 in the left ear.

C.  Analysis  
The results of the Veteran's February 2009 audiogram reveal no worse than Level II hearing acuity in the right ear and Level II hearing acuity in the left ear.  Application of the above-noted findings to Table VII result in a 0 percent disability rating under 38 C.F.R. § 4.85, DC 6100.
The results of the Veteran's July 2009 audiogram reveal no worse than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear.  Application of the above-noted findings to Table VII result in a 0 percent disability rating under 38 C.F.R. § 4.85, DC 6100.
The results of the Veteran's October 2011 audiogram reveal no worse than Level II hearing acuity in the right ear and Level I hearing acuity in the left ear.  Application of the above-noted findings to Table VII result in a 0 percent disability rating under 38 C.F.R. § 4.85, DC 6100.
The results of the Veteran's June 2012 audiogram reveal no worse than Level II hearing acuity in the right ear and Level II hearing acuity in the left ear.  Application of the above-noted findings to Table VII result in a 0 percent disability rating under 38 C.F.R. § 4.85, DC 6100.
Finally, the results of the Veteran's March 2014 audiogram reveal no worse than Level V hearing acuity in the right ear and Level V hearing acuity in the left ear.  Application of the above-noted findings to Table VII result in a 20 percent disability rating under 38 C.F.R. § 4.86, DC 6100.
As noted above, the Rating Schedule provides for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86.  The Veteran's audiogram results, prior to March 2014, do not demonstrate either (1) a pure tone threshold of 55 decibels or more in all four frequencies in any service-connected ear, or (2) a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. 38 C.F.R. § 4.86.  Therefore, the Veteran is not entitled to consideration for exceptional patterns of hearing impairment in any ear.  In sum, there is no basis for a compensable rating for bilateral hearing loss prior to March 10, 2014.

Based upon the evidence in this case, including the Veteran's contentions, the exact onset of the Veteran's bilateral hearing acuity at a Level V cannot be determined with any certainty.  Resolving all reasonable doubt in the Veteran's favor, the earliest date that it can be factually ascertained that he met the diagnostic criteria for an award of a 20 percent rating is March 10, 2014, the date of VA audiological examination.  The evidence shows that the Veteran's entitlement to a 20 percent rating did not arise until March 10, 2014, which, based on the facts found, relates to audiometric findings of Level V hearing acuity in the right and left ears in a March 10, 2014, VA examination report.  Therefore, the date entitlement arose controls as it later than the date of the original claim filed in July 2008 as well as the dates of a VA examination in June 2012 and of a purported claim for increase in September 2013.  See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017).  As a result, the Veteran would not be entitled to an effective date earlier than March 10, 2014, for an award of a 20 percent rating for bilateral hearing loss.

The law provides that the earliest effective date that may be assigned for an award of a 20 percent rating for bilateral hearing loss is the date entitlement arose on March 10, 2014.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Accordingly, an effective date earlier than March 10, 2014, for a 20 percent rating for bilateral hearing loss is not warranted.

Under these circumstances, the Board finds it reasonable to conclude that prior to March 10, 2014, the evidence of record has presented no basis for the assignment of a compensable disability rating for the Veteran's service-connected bilateral hearing loss.

II.  Increased Rating - Chronic Otitis Media, Left Ear

The Veteran is currently in receipt of a 10 percent rating for chronic otitis media, left ear, under Diagnostic Code 6200.  A maximum 10 percent rating is warranted for chronic suppurative otitis media during suppuration, or with aural polyps.  A note to the criteria provides that hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of the skull are to be rated separately.  See 38 C.F.R. § 4.87, Diagnostic Code 6200.

The Board notes that service connection is already in effect for bilateral hearing loss currently rated 20 percent (Diagnostic Code 6100), tinnitus currently rated 10 percent (Diagnostic Code 6260), and non-specific chronic dizziness without known cause (claimed as vertigo) currently rated 30 percent (Diagnostic Code 6204).  See, e.g., Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  A note to Diagnostic Code 6204 further provides that hearing impairment or suppuration shall be separately rated and combined.  See 38 C.F.R. § 4.87, Diagnostic Code 6204.

Whereas here, chronic otitis media is a listed condition under the Schedule, and additional separate ratings have been assigned under applicable Diagnostic Codes, the Board has a duty to apply the Diagnostic Code (6200) that specifically pertains to chronic otitis media in order to determine the appropriate rating for that condition.  See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that when a condition is specifically listed in the Schedule, it may not be rated by analogy); Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating . . . may be assigned only where the service condition is 'unlisted'").

As indicated by the record evidence, including the Veteran's contentions, the left ear otitis media demonstrates a degree of impairment comparable to that disorder during the continuance of the suppurative process.  After a careful review of the available Diagnostic Codes and the record evidence, both lay and medical, Diagnostic Codes other than 6200 do not apply to provide a basis to assign a rating higher than the 10 percent currently in effect.  Copeland and Suttmann, both supra.  Hence, the Veteran is currently receiving the highest available rating for his left ear chronic otitis media.  As such, an increased rating is not warranted.

The Board additionally notes the claim for chronic headaches, which the Veteran purports to experience when the infection process associated with his left ear otitis media occurs.  Thus, the crux of the Veteran's claim for VA benefits in this regard appears to be based on the theory that he is entitled to service connection for chronic headaches as secondary to his service-connected chronic otitis media, left ear.  As previously indicated, the matter concerning secondary service connection for chronic headaches has been referred to the AOJ for appropriate consideration and handling in the first instance and will not be addressed at this time by the Board.


ORDER

Entitlement to a compensable rating prior to March 10, 2014, for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for chronic otitis media, left ear, is denied.


REMAND

Timeliness of NOD

The Board observes that the issue of the timeliness of a February 2017 NOD stems from a February 2016 rating decision.  By that decision, the AOJ granted service connection for non-specific chronic dizziness of unknown cause (claimed as vertigo) and assigned a 30 percent rating.  The information of record discloses that the AOJ sent the Veteran and his attorney a letter on February 12, 2016, which provided written notice of the February 2016 rating decision and of his appellate rights.

The Veteran, by and through his attorney, submitted correspondence, dated February 28, 2017, which purports to be a NOD with the 30 percent rating assigned in the February 2016 rating decision.  On March 2, 2017, the AOJ sent the Veteran and his attorney a decision letter and notice of his appellate rights, in which the AOJ determined that the February 2017 NOD could not be accepted, citing that it was untimely, namely because it was received more than one year from the date that he was notified of the February 2017 rating decision.  On March 15, 2017, the Veteran, by and through his attorney, filed a NOD with the timeliness of the filing of the February 2017 NOD.  In this NOD, the attorney stated that the February 28, 2017 NOD was filed late, with good cause, because his office and the Veteran did not receive a copy of the February 2016 rating decision.

A NOD must be filed within one year from the date of mailing of notice of the result of the original review or determination.  38 U.S.C. § 7105 (2012).  The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 C.F.R. § 20.302 (2017).  If no NOD is filed within the prescribed period, the action or determination shall be come final.  38 U.S.C. § 7105; 38 C.F.R. § 20.302; see also Rowell v. Principi, 4 Vet. App. 9, 15 (1993) (timely-filed NOD is a prerequisite to exercise of jurisdiction by the Board over appeal from an adverse RO decision).  There is an exception where the claimant requests an extension, and good cause is shown to grant the request.  38 C.F.R. § 3.109 (2017).

There is a presumption of regularity that supports "the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992).  In this regard, there is a presumption of regularity that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations.  See Marsh v. Nicholson, 19 Vet. App. 381 (2005).  In Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992), the Court of Appeals for Veterans Claims (Court) held that this presumption extends to the actions of the RO (AOJ) in discharging its duty to mail a copy of the determination decision to the Veteran (and his representative) at the latest address of record.  Id; see 38 U.S.C. § 5104(a) (2012) (Secretary to provide to claimant timely notice of decision).  For the purposes of this appeal, the presumption of regularity extends to the Veterans Service Center Manager and to other officials at the RO (AOJ) who were responsible for providing written notification to the Veteran of the February 2016 rating decision.  See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO (AOJ)).

Significantly, the Veteran may rebut the above presumption by submitting clear evidence to the effect that VA's regular mailing practices were not followed in his case.  In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law.  See Crain v. Principi, 17 Vet. App. 182, 188 (2003).  An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.  Jones v. West, 12 Vet. App. 98, 102 (1998).

With respect to the provisions of 38 C.F.R. § 3.109, regarding a discretionary good cause waiver for failure to file a timely notice of disagreement, the Board observes that in promulgating this regulation, the Department of Veterans Affairs stated that "the failure to provide notice to a claimant or beneficiary would clearly be good cause for extending the time limits for action," adding that '[i]neffective notice is tantamount to no notice."  Procedural Due Process, 55 Fed. Reg. 13,522, 13,526 (Apr. 11, 1990).  This explanatory language makes clear VA's duty to provide proper written notice to a claimant in accordance with law and governing regulations, as well as the legal remedy that will apply if VA breaches that duty.  Id.  Where, as in this case, the relevant information required to show that VA discharged it's duty to provide the Veteran and his attorney written notice of the February 2016 rating decision and of his appellate rights is contained in a February 2016 letter and is of record, an allegation of nonreceipt, standing alone, would likewise not be sufficient to show good cause in this case.

While the AOJ acknowledged the February 2017 NOD in a March 2017 Decision Review Officer (DRO) letter, and while the Veteran filed a VA Form 9 in April 2017, following the issuance of an April 2017 SOC that addressed the 30 percent rating assigned for non-specific chronic dizziness without known cause (claimed vertigo), the fact still remains that the correspondence from the Veteran's attorney dated February 28, 2017, was not received within the time frame for initiating an appeal of the 30 percent rating in accordance with 38 U.S.C. § 7105.

Under the laws administered by VA, the Board may address questions pertaining to its jurisdictional authority to review a particular case, including but not limited to, determining whether a Notice of Disagreement (NOD) is adequate and timely, at any stage in a proceeding before it, regardless of whether the AOJ has addressed such question.  38 C.F.R. § 20.101(d) (2017).  Hence, the AOJ's actions in March 2017 and April 2017 may not be construed to foreclose the Board's authority to determine its jurisdiction in this discrete matter.

Here, the Veteran has filed a NOD in March 2017, contesting the timeliness of the February 2017 NOD with respect to a February 2016 rating decision that assigned a 30 percent rating for non-specific chronic dizziness of unknown cause (claimed as vertigo).  See Decision Letter, dated March 15, 2017.  By filing a timely NOD, the Veteran initiated appellate review of the timeliness of the February 2017 NOD.  The Veteran has not been furnished a SOC that addresses the timeliness issue.  As such, the Board remands this issue to the AOJ to furnish a SOC and to give the Veteran an opportunity to complete an appeal of such issue by submitting a timely substantive appeal.  Manlincon v. West, 12 Vet. App. 238 (1999).

Until the timeliness of the NOD is resolved, the Board cannot reach the underlying issue as to the propriety of the 30 percent rating assigned for non-specific chronic dizziness of unknown cause (claimed as vertigo).

Accordingly, the case is REMANDED for the following action:

The AOJ should furnish the Veteran and his attorney-representative a Statement of the Case that addresses the issue of whether a February 28, 2017, notice of disagreement, submitted in response to a February 2016 rating decision that assigned a 30 percent rating for non-specific chronic dizziness of unknown cause (claimed as vertigo), was timely filed.  The AOJ should return this issue to the Board only if the Veteran files a timely substantive appeal.

When the above development has been completed, the Veteran and his attorney should be given an opportunity to respond thereto.  The purpose of this REMAND is to accord due process of law and the Board does not intimate any opinion, either factual or legal, as to the ultimate disposition warranted in this case.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This case must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs