Citation Nr: 0725071 Decision Date: 08/13/07 Archive Date: 08/20/07 DOCKET NO. 05-27 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from March 1970 to March 1974 and from February 1991 to April 1991. The veteran also was a member of the Air National Guard from January 1981 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT The October 2004 examination results constitute Level IV hearing on the right and Level II hearing on the left; the March 2005 examination results constitute Level I hearing in both ears; the January 2006 examination results constitute Level II hearing in both ears. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2005). A letter dated in December 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. The VCAA letter informed the claimant that additional information or evidence was needed to support the initial service connection claim and asked the claimant to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The VCAA letter did not provide notice of the type of evidence necessary to establish a disability rating or effective date should the claimant's claim for service connection for bilateral hearing loss be granted. In a March 2005 rating decision, the RO granted service connection for bilateral hearing loss and the issue on appeal concerns the claim of entitlement to a higher evaluation for this now service-connected disability. Even though the VCAA letter did not include adequate notice of what was needed to establish a disability rating and effective date, the Board finds no prejudice to the claimant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the claimant has been prejudiced thereby). In this regard, the Board observes that the VCAA notice was properly tailored to the application for the original request for service-connected benefits. As stated above, the RO awarded service connection for bilateral hearing loss in March 2005 rating decision and assigned an initial noncompensable disability rating effective October 2004 (date of claim). Therefore, the VCAA letter served its purposes in that it provided section 5103(a) notice of the claimant; and its application is no longer required because the original claim has been "substantiated." See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the claimant's notice of disagreement (NOD), the claimant took issue with the initial noncompensable disability rating and is presumed to be seeking the maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A and 7105(d), the RO properly issued a July 2005 statement of the case (SOC) which contained, in pertinent part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b), to include in a March 2006 letter. See also Dingess/Hartman. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claims. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427, 439-444 (2006). The claimant's pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded VA examinations in October 2004, March 2005, and January 2006. 38 C.F.R. § 3.159(c)(4). There is no objective evidence indicating that there has been a material change in the service-connected bilateral hearing loss since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Evaluation Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Unites States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." The veteran was afforded VA audiological evaluation in October 2004. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 55 N/A 60 LEFT 55 55 N/A 60 The average in the right ear was 55 and the average in the left ear was 56.66. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 84 percent in the left ear. The examiner stated that the veteran had moderate to moderately severe sensorineural hearing loss with moderately impaired speech recognition in the right ear and moderate to moderately severe sensorineural hearing loss with mildly impaired speech recognition in the left ear. The veteran was afforded VA audiological evaluation in March 2005. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 40 35 LEFT 45 45 50 45 The average in the right ear was 38.75 and in the left ear was 46.25. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 percent in the left ear. The examiner stated that the veteran had sensorineural hearing loss in both ears. Thereafter, the veteran contacted VA regarding hearing aids. In January 2006, the veteran was afforded VA audiological evaluation in March 2005. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 45 50 45 LEFT 50 50 55 50 The average in the right ear was 45 and in the left ear was 51.25. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. The examiner stated that the veteran had sensorineural hearing loss in both ears. The veteran maintains that he has difficulty hearing as well as understanding speech. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins were a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The veteran is competent to report having decreased hearing and that he does not understand speech well. He is also credible in those statements. However, he is not competent to provide an opinion regarding his exact audiological findings at various Hertz levels or of his speech recognition scores as these matters require medical expertise which he does not possess. In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo- Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is 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. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of 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. See 38 C.F.R. § 4.85(c). Copies of the pertinent tables were provided to the veteran in the statement of the case. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). When the puretone 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. See 38 C.F.R. § 4.86(b). Under the rating criteria, the October 2004 examination results constitute Level IV hearing on the right and Level II hearing on the left. When combined, the result is a non- compensable or 0 percent disability evaluation. On the March 2005 examination, the veteran had Level I hearing in both ears which equates to a non-compensable or 0 percent disability evaluation. On the January 2006 examination, the veteran had Level II hearing in both ears which also equates to a non-compensable or 0 percent disability evaluation. Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, on any of the examinations. The Board acknowledges the veteran's contentions regarding his difficulty hearing, however, the audiology examinations yielded results warranting a non-compensable rating throughout the appeal period. This objective evidence is more persuasive with regard to the level of disability under the rating schedule as it specifically pertains to those rating criteria. The veteran's representative has argued that the testing was performed in a controlled sound environment. However, VA regulations set forth specific requirements for the conduct of audiology examinations used to rate hearing loss. 38 C.F.R. § 4.85(a); see also 38 C.F.R. § 4.85(b)-(d) (2006). The representative has not identified the way in which the VA examination failed to comply with the regulatory requirements. Those regulations anticipate that examinations will be conducted in a controlled environment. 59 Fed. Reg. 17296 (Apr. 12, 1994). They also recognize that in certain exceptional circumstances examinations in a controlled environment would not adequately portray the level of hearing impairment under ordinary conditions of life. Id. For that reason, VA adopted 38 C.F.R. § 4.86 to evaluate those exceptional patterns of hearing loss. Id. The representative has not cited any authority for the proposition that testing in a soundproof room or controlled sound environment is inadequate to determine the effects of hearing loss under the ordinary conditions of life absent an exceptional pattern of hearing loss. In any event, the precise conduct of hearing examinations is the province of state licensed audiologists who possess the necessary expertise to determine how best to conduct hearing examinations. The Board does not possess the necessary expertise to second guess those determinations except to ensure that the examinations are conducted in accordance with the requirements of the regulations. The representative also asserted that 38 C.F.R. § 3.321 is for application. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. In this case, however, the evidence does not show that the veteran's bilateral hearing loss has caused marked interference with employment or has required frequent hospitalizations. There have been no hospitalizations. The veteran's hearing on the examinations was noncompensable. Although he has reported that he has some interference in his ability to communicate which he is competent and credible to report, given the examination reports, the interference is not marked and he has not submitted any supporting evidence constituting marked interference. Therefore, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is bound in its decision by application of the rating schedule to the reported test results. The preponderance of the evidence is against the claim for a compensable evaluation for the veteran's hearing loss disability. Thus, the benefit sought on appeal must be denied. ORDER An initial compensable rating for bilateral hearing loss is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs