Citation Nr: 0318293 Decision Date: 07/30/03 Archive Date: 08/05/03 DOCKET NO. 98-14 343A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for service-connected tinnitus. 2. Entitlement to a compensable rating for service-connected right ear mixed hearing loss with old scarring from eardrum perforation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tanya A. Smith, Associate Counsel INTRODUCTION The veteran had active service from May 1945 to September 1946. This matter comes back before the Board of Veterans' Appeals (Board) following a remand of the United States Court of Appeals for Veterans Claims (Court) by Order dated March 3, 2003. This appeal originally arose from July 1998 and May 1999 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. The RO received Form 21-4138 in December 1997 from the veteran. In December 1997, the veteran filed a claim for service connection of a hearing impairment. By a rating decision dated in July 1998, the RO granted service connection for severe, mixed right hearing loss, with history of perforation and scarring, effective December 2, 1997. The veteran filed a Notice of Disagreement in August 1998 and the RO issued a Statement of the Case in August 1998. In September 1998, the veteran filed a Substantive Appeal in which he continued to complain that he was entitled to a higher initial evaluation for right ear hearing loss. The RO issued a Supplemental Statement of the Case in April 1999 and continued the noncompensable evaluation. In May 1999, based on findings reported in the February 2, 1999 VA examination report and a medical opinion provided in an April 1999 addendum, the RO granted service connection for right ear tinnitus, rated at noncompensable, effective February 2, 1999. In October 1999, the veteran filed a claim for an increased evaluation for service-connected right ear tinnitus. By an October 1999 rating decision, the RO increased the rating to 10 percent effective June 10, 1999, the date the rating schedule criteria for evaluating tinnitus changed. The veteran filed a Notice of Disagreement with the October 1999 rating decision and the RO issued a Statement of the Case in January 2000. The RO received the veteran's Substantive Appeal on the tinnitus claim in February 2000. Based on findings reported in the February 8, 2000 VA examination report, by an April 2000 rating decision, the RO granted service connection for sensorineural hearing loss of the left ear, effective February 8, 2000. The left ear disability was included with the evaluation of right ear mixed hearing loss, and thereby increased the rating to 20 percent, effective February 8, 2000. The RO issued an April 2000 Supplemental Statement of the Case and continued the noncompensable evaluation for right ear hearing loss prior to February 8, 2000. The RO also continued evaluation of tinnitus as noncompensable even though the veteran now reported constant bilateral tinnitus. By a decision dated in May 2001, the Board denied a compensable evaluation for tinnitus prior to June 10, 1999 and an evaluation in excess of 10 percent since that date. The Board also denied a compensable evaluation for right ear mixed hearing loss prior to February 8, 2000. The veteran appealed the May 2001 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2002, the veteran through counsel filed a brief and advanced the following arguments: (1) the Board failed to consider separate ratings for bilateral tinnitus; (2) the veteran was entitled to separate ten percent ratings for his service-connected tinnitus of the right and left ears, effective from February 8, 2000. The veteran asserted that the rating criteria for evaluating tinnitus was ambiguous with respect to whether the ten percent rating provided was for unilateral or bilateral tinnitus. Therefore, the ambiguity in the regulation should be resolved in the veteran's favor. In July 2002, the Secretary of VA filed his brief and advanced the following arguments: (1) the Board's decision should be affirmed as the Secretary's interpretation of 38 C.F.R. § 4.87, Diagnostic Code 6260 was consistent with the plain language of the regulation; (2) the veteran abandoned the issues of entitlement to an increased evaluation for right ear mixed hearing loss and entitlement to a compensable evaluation for tinnitus prior to June 10, 1999. The Secretary asserted that VA considered tinnitus a single disability, whether heard in one ear, both ears, or somewhere undefined in the head. Additionally, the Secretary observed that the veteran presented no arguments on the issues of entitlement to a higher rating for right ear hearing loss and entitlement to a compensable rating for tinnitus prior to June 10, 1999. Thus, the Secretary urged the Court to consider those issues abandoned. The veteran through counsel filed a reply in July 2002. By Order of the Court dated March 3, 2003, the Court vacated the May 2001 Board decision and remanded the veteran's claim for readjudication in light of Wanner v. Principi, 17 Vet. App. 4 (2003) (consolidated with Wright v. Principi, No. 01- 1012). In Wanner, the Court remanded the veterans' claims after finding that the Board's statements of reasons and bases were inadequate because the Board failed to discuss the applicability of 38 C.F.R. § 4.25(b) to the veterans' claims for separate ratings for tinnitus of each ear. In the instant appeal, the Court Order only addressed the tinnitus issue yet vacated the Board's entire decision. Therefore, the Board will readjudicate all issues that were properly before the Court. FINDINGS OF FACT 1. The original and revised versions of Diagnostic Code 6260 authorize a single 10 percent rating for tinnitus, regardless of whether it is perceived in one ear, both ears, or in the head, and precludes the assignment of separate ratings for bilateral tinnitus. 2. The veteran filed his claim for a higher rating for right ear tinnitus in October 1999, which was within a year from February 2, 1999, the date of the VA examination which showed an increase in disability. 3. The veteran was not deaf in the formerly nonservice- connected left ear. The veteran demonstrated Level III and Level IX hearing acuity in his right ear on the 1998 and 1999 audiological examinations; the veteran also demonstrated an exceptional pattern of hearing impairment in the right ear manifested by Level VI and Level VII hearing acuity. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 10 percent for service-connected right and left ear tinnitus is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.87, Diagnostic Code 6260 (2002). 2. Entitlement to a 10 percent rating for tinnitus on and after February 2, 1999, is warranted. 38 U.S.C.A. §§ 5103, 5103A, 5110(a), (b)(2) (West 2002); 38 C.F.R. §§ 3.159, 3.400(o) (2002). 3. A compensable evaluation prior to February 8, 2000, for right ear mixed hearing loss, with old scarring from eardrum perforation is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, VII (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 During the pendency of this appeal, there was a change in the law pertaining to veteran's benefits. The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2002). The new statute revised the former section 5107(a) of title 38, United States Code, eliminating the requirement that a claimant must first come forward with evidence to well-ground a claim before the Secretary of VA is obligated to assist the claimant in developing the facts pertinent to a claim. The new statute also provided that the veteran must be advised of the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes that the issue of whether the veteran is entitled to separate ratings for tinnitus turns on an interpretation of the relevant regulation. The Court has held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). In regard to the issue of whether the veteran is entitled to a compensable rating for right ear mixed hearing loss prior to February 8, 2000, the Board notes that all relevant evidence (i.e., evidence of the severity of the hearing loss prior to February 8, 2000) has already been associated with the claims file. For that reason, the Board will not remand the veteran's claim on this issue to cure any procedural defects in notice. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (providing that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Increased Rating for Tinnitus The regulations pertaining to the evaluation of diseases and injuries of the ears were revised effective June 10, 1999. 64 Fed. Reg. 25,202 (1999) [codified at 38 C.F.R. §§ 4.85- 4.87] The former rating criteria provided a maximum 10 percent rating for persistent tinnitus as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). The revised regulation provided a maximum 10 percent rating for recurrent tinnitus, regardless of its etiology. A note following the revised diagnostic code indicates that a separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002). In Wanner v. Principi, 17 Vet. App. 4, 17-18 (2003), the Court invalidated that part of the regulation in effect prior to June 1999 that contained a trauma requirement for a compensable rating to apply. The regulation was revised further in May 2003 to add two additional notes following the diagnostic code as follows: Note (2): Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. Note (3): Do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it. 68 Fed. Reg. 25,822 (May 14, 2003). VA's Office of the General Counsel (OGC) recently issued an opinion on the instant issue. In VAOPGCPREC 2-03, OGC noted that "tinnitus is the perception of sound in the absence of an acoustic stimulus." VAOPGCPREC 2-03 at p. 2, citing The Merck Manual 665 (17th ed. 1999). The OGC referenced the notice of proposed rulemaking resulting in the amendment to Diagnostic Code 6260 in May 2003 for the medical explanation of tinnitus: True (subjective) tinnitus does not originate in the inner ear, although damage to the inner ear may be a precursor of subjective tinnitus. It is theorized that in true tinnitus the brain creates phantom sensations to replace missing inputs from the damaged inner ear, similar to the brain's creation of phantom pain in amputated limbs. . . . True tinnitus, i.e., the perception of sound in the absence of an external stimulus, appears to arise from the brain rather than the ears. See Schedule for Rating Disabilities: Evaluation of Tinnitus, 67 Fed. Reg. 59,033 (Sept. 19, 2002) [citing Diseases of the Ear, H. Ludman, and T. Wright, 6th ed., chapter 11; Phantom auditory perception (tinnitus): mechanisms of generation and perception, Neuroscience Research 8:221-2, P. Jasterboff, 1990; and Mechanisms of Tinnitus. Allyn and Bacon, 1995, J. Vernon and A. Moller (Eds.)]. Based on this medical explanation, the OGC found that "the perception of noise is the disability identified in true tinnitus, and the source of this perceived noise is not in either or both ears. The undifferentiated nature of the source of the noise that is tinnitus is the primary basis for VA's practice, as reflected in the notice of proposed rulemaking, of rating tinnitus as a single disease entity." VAOPGCPREC 2-03, p. 3. OGC therefore determined that the original and revised versions of Diagnostic Code 6260 authorized a single 10 percent rating for tinnitus, regardless of whether it was perceived as unilateral, bilateral, or in the head, and precluded the assignment of separate ratings for bilateral tinnitus. The Board notes that it can consider this matter initially without remanding it to the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). A precedential opinion of the OGC is as binding on the ROs as it is on the Board. Thus, remanding the case to the RO would serve no useful purpose and accomplish nothing except to further delay resolution of this case. See Soyini v. Derwinski, 1 Vet. App. at 546; Sabonis v. Brown, 6 Vet. App. at 430. As such, the Board observes that precedential opinions of the OGC are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000). For that reason the Board finds that all versions of Diagnostic Code 6260 preclude the assignment of separate disability ratings for bilateral tinnitus and that 10 percent is the maximum rating available for tinnitus. The regulations provide that except as otherwise provided in the Rating Schedule, disabilities arising from a single disease entity are to be rated separately. See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.25(b) (2002). The assignment of separate ratings is, however, dependent on a finding that the disease entity is productive of distinct and separate symptoms; the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14 (2002); Brady v. Brown, 4 Vet. App. 203, 206 (1993). As the OGC opinion makes clear, the disease entity of "tinnitus" has but one symptom-the perception of sound in the brain without acoustic stimulus. Since tinnitus does not produce separate and distinct symptoms, the assignment of separate ratings for the right and the left ear is not appropriate. The Board now considers whether the veteran is entitled to a compensable rating prior to June 10, 1999 in light of Wanner. In Wanner, the Court ordered the Board to consider whether the veteran met the criteria under the old criteria of Diagnostic Code 6260 for the period prior to June 10, 1999, pursuant to DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Wanner, 17 Vet. App. at 16. Thereafter, the Court handed down Smith v. Principi, No. 01-623 (U.S. App. Vet. June 10, 2003). In Smith, the Court decided that the Board's conclusion that the veteran's tinnitus was not "persistent" as required by pre-1999 Diagnostic Code 6260 must be reversed because it was reached in a manner that was "arbitrary, capricious, [and] an abuse of discretion." The Court found it difficult to discern between the requirements of "persistent" and "recurrent" in the pre-1999 and current diagnostic codes, respectively, and noted that any differences appeared negligible. The Court maintained that the Board's definition of "persistent" and "recurrent" had overlapping definitions, and therefore, the Board's conclusion that the veteran's tinnitus was not "persistent" as required by pre-1999 Diagnostic Code 6260 must be reversed because it was reached in a manner that was "arbitrary, capricious, and abuse of discretion." The Court ordered on remand to award a rating of 10 percent and to assign an effective date pursuant to 38 U.S.C. § 5110 (West 2002). The medical evidence shows that the veteran's tinnitus was initially reported at a VA examination on February 2, 1999. At that time it was described as unilateral and periodic, occurring about once a month. At a subsequent examination in February 2000, the tinnitus was established as bilateral and recurrent, occurring after noise exposure. The Board relies heavily on the Court's interpretation that the differences between the terms "persistent" and "recurrent" are negligible. It follows that the Board must also find that the differences between "recurrent" and "periodic" are also negligible as "'recurrent' is defined as, inter alia, 'appearing or occurring again or periodically.'" Smith, (quoting Webster's New World Dictionary 1007, 1123 (3d ed. 1988)) (emphasis added). To otherwise interpret the term would "'define[] [the regulatory term] too narrowly' as applied to tinnitus." The Board notes that the effective date for the award of an increased rating is generally the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2002). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the earliest date as of which an increase is factually ascertainable is used; otherwise, date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2002). The veteran filed his claim for a higher rating for right ear tinnitus in October 1999, which was within a year from the date an increase was factually ascertainable on February 2, 1999, the date of the VA examination. Therefore, the Board finds that the veteran is entitled to an award of 10 percent for tinnitus prior to June 10, 1999. The effective date is the earliest date as of which an increase is factually ascertainable, February 2, 1999. Compensable Rating for Right Ear Mixed Hearing Loss prior to February 8, 2000 The report of the veteran's separation medical examination in September 1946 reflects that he then had chronic suppurative otitis media of the right ear. The rating decision of July 1998 that initially established service connection recognized that chronic otitis media was known to cause hearing loss. Service connection was granted for the resulting right ear hearing loss on that basis. The February 1998 VA audiological examination report shows that the veteran reported a long history of right ear infections. He believed that his right tympanic membrane had been perforated since childhood. He complained of decreased hearing in the right ear with irritation and infection since basic training. He reported difficulty with hearing in all listening situations. Audiometric testing indicated that the veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 70 70 80 75 74 LEFT 35 45 60 65 51 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 94 percent in the left ear. The diagnoses were severe to profound mixed hearing loss for the right ear with good speech intelligibility scores, and a mild to moderately severe sensorineural hearing loss for the left ear with excellent speech intelligibility. An otoscopic inspection indicated a possible perforated tympanic membrane of the right ear with a very unusual appearing eardrum and a normal left ear. The ear examination revealed no active right ear disease. The February 1999 VA audiological examination report shows that audiometric testing indicated that the veteran exhibited puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 80 75 90 85 83 LEFT 40 55 60 70 56 Speech audiometry revealed speech recognition ability of 48 percent in the right ear and 86 percent in the left ear. An otoscopic inspection revealed a dry ear canal with an obvious tympanic membrane perforation. The audiologist diagnosed severe to profound mixed hearing loss in the right ear and mild to moderately severe sensorineural hearing loss. Speech intelligibility in the right ear was poor and good in the left ear. The examiner commented that the test results were consistent with those reported in February 1998 with the exception of decreased speech intelligibility in the right ear. The ear examination revealed no active right ear disease. Audiometric testing was conducted again on February 8, 2000. Based on findings reported in the February 2000 VA examination report, the RO granted service connection for sensorineural hearing loss of the left ear. The left ear disability was included with the evaluation of right ear mixed hearing loss, and thereby increased the rating to 20 percent, effective February 8, 2000. Hearing loss is evaluated under the provisions of 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule. At the February 1998 VA audiological examination, the veteran demonstrated Level III hearing acuity in the right ear (puretone threshold average 74, speech discrimination score 88%) and Level I hearing acuity in the left ear (puretone threshold average 51, speech discrimination score 94%). 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI (2002). At the February 1999 VA audiological examination, the veteran demonstrated Level IX hearing acuity in the right ear (puretone threshold average 83, speech discrimination score 48) and Level II hearing acuity in the left ear (puretone threshold average 56, speech discrimination score 86%). Id. The audiometric test results clearly showed that the veteran had hearing in his left ear. Since, prior to February 8, 2000, service connection was in effect for defective hearing in the right ear only and total deafness in the left ear was not present, the hearing in the left ear was properly considered to be unimpaired for rating purposes. 38 C.F.R. §§ 3.383(a)(3), 4.85(f) (2002). Under the regulations, hearing in the then nonservice-connected left ear, is considered to be at Level I. Id. Under Diagnostic Code 6100, a noncompensable evaluation is assigned where hearing acuity is at Level III or Level IX for one ear (right ear) and Level I for the other (nonservice-connected left ear). 38 C.F.R. § 4.85, Diagnostic Code 6100, Tables VI, VII (2002). The regulations now provide that in cases of exceptional hearing loss, i.e. 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. 38 C.F.R. § 4.86(a) (2002). The provisions of 38 C.F.R. § 4.86(b) (2002) provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. The veteran's right ear hearing loss demonstrated the exceptional pattern of hearing impairment described under 38 C.F.R. § 4.86 (a) (2002). Nevertheless, under Diagnostic Code 6100, a noncompensable evaluation is assigned where hearing acuity is at Level VI (puretone threshold average 74) or Level VII (puretone threshold average 83) for one ear (right ear) and Level I for the other (nonservice-connected left ear). 38 C.F.R. § 4.85, Diagnostic Code 6100, Tables VIA, VII (2002). Accordingly, the veteran's right ear hearing impairment warrants a noncompensable rating prior to February 8, 2000. The December 2002 revision to 38 U.S.C.A. § 1160 does not affect this appeal. Finally, any limits on the veteran's employability due to his right ear hearing impairment prior to February 8, 2000 and tinnitus were contemplated in the award of a noncompensable rating and 10 percent rating, respectively. The record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant the assignment of an extraschedular rating. Since application of the regular schedular standards is not rendered impracticable in this case, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extraschedular evaluation. ORDER The appeal to establish entitlement to a disability rating in excess of 10 percent for tinnitus is denied. Entitlement to a 10 percent rating for tinnitus on and after February 2, 1999, is granted. Entitlement to a compensable rating prior to February 8, 2000, for right ear mixed hearing loss with old scarring from eardrum perforation is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.