Citation Nr: 1815285 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-23 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable disability rating for service-connected right ear hearing loss. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from June 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina, that granted the claim of service connection for right ear hearing loss, assigning an initial noncompensable disability rating. The Veteran expressed disagreement with the assigned initial disability rating and perfected a substantive appeal. In the June 2014 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran indicated that he wished to be scheduled for a local hearing over which a Veterans Law Judge of the Board would have presided. The Veteran was then scheduled for the requested hearing to have been held in September 2017, however, he failed to report for the hearing. He has not explained his absence or requested to reschedule the hearing. Thus, the appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704(d) (2017). The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT The Veteran's hearing is manifested by no more than Level II hearing acuity in the right ear and the non-service-connected left ear is assigned a Level I hearing acuity for the entire period on appeal. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in August 2011, December 2011, April 2012, May 2012, and November 2014 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. This is an appeal arising from a grant of service connection in November 2012; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). In cases where service connection for hearing loss has been established in only one ear, as is the case here, evaluation under Table VII to determine the disability rating will be calculated with the non-service-connected ear "assigned a Roman Numeral designation for hearing impairment of I." 38 C.F.R. § 4.85 (f). The Board further notes the United States Court of Appeals for Veterans Claims (Court) has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran asserts that his right ear hearing loss is more severe than reflected by the currently assigned noncompensable disability rating. Specifically, he describes difficulty understanding conversation and with hearing announcements in a larger setting. A VA examination report dated in February 2012 shows that the Veteran reported difficulty with hearing when watching television or listening to the radio at normal volume. He added that he would have to turn up the volume on his telephone. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 55 55 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The diagnosis was sensorineural hearing loss of the right ear. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level I for his right ear. Under the 38 C.F.R. § 4.85 (f), Level I is assigned for the left ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in the right ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. A VA examination report dated in December 2013 shows that the Veteran reported difficulty with hearing resulting in his having to ask people to repeat themselves. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 40 55 55 48 Speech audiometry revealed speech recognition ability of 90 percent in the right ear. The diagnosis was sensorineural hearing loss of the right ear. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level II for his right ear. Under the 38 C.F.R. § 4.85 (f), Level I is assigned for the left ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in the right ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. A VA examination report dated in October 2014 shows that the Veteran reported that even with hearing aids, he would have difficulty hearing people during one on one conversations. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 35 55 50 44 Speech audiometry revealed speech recognition ability of 90 percent in the right ear. The diagnosis was sensorineural hearing loss of the right ear. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level II for his right ear. Under the 38 C.F.R. § 4.85 (f), Level I is assigned for the left ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in the right ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. A VA examination report dated in January 2016 shows that the Veteran reported difficulty understanding conversation and with hearing announcements when in church. Audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 60 50 46 Speech audiometry revealed speech recognition ability of 90 percent in the right ear. The diagnosis was sensorineural hearing loss of the right ear. Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation of Level II for his right ear. Under the 38 C.F.R. § 4.85 (f), Level I is assigned for the left ear. The pure tone thresholds for this examination do not reflect an exceptional pattern of hearing loss in the right ear as contemplated by 38 C.F.R. § 4.86 (a) or 38 C.F.R. § 4.86 (b); as such, those provisions are inapplicable. Application of 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected right ear hearing loss disability for the entire period on appeal. The evidence of record does not more nearly reflect the criteria for a compensable disability rating. 38 C.F.R. § 4.7. The Board notes that the foregoing VA examination reports specifically addressed the functional limitations caused by the Veteran's hearing loss, as the Veteran described such effects as having to have speech repeated and having to turn up the volume when using telephone with the right ear. See Martinak, supra. To the extent that the Veteran reports that his acuity is worse than rated, the Board has considered his statements. This evidence is both competent and credible in regard to reporting his hearing acuity. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. Accordingly, the claim for an initial compensable disability rating for right ear hearing loss must be denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because the disability has not met the criteria for a higher disability rating at any time during the appeal period, there is no basis for a staged rating. See Fenderson, supra. ORDER An initial compensable disability rating for service-connected right ear hearing loss is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs