Citation Nr: 1145973 Decision Date: 12/16/11 Archive Date: 12/21/11 DOCKET NO. 08-34 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss, claimed as defective hearing, currently evaluated as 20 percent disabling. 2. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. 3. Entitlement to an effective date prior to January 5, 2007 for the grant of service connection for tinnitus. 4. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Margulies, Counsel INTRODUCTION The Veteran had active duty from January 1972 to February 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky. The Veteran requested a travel Board hearing in his November 2008 substantive appeal. The Veteran received a letter scheduling his hearing for September 2010. The Veteran failed to appear for the hearing. Therefore, as the Veteran has not provided a reason for his failure to appear, the request for a hearing is deemed to have been withdrawn. 38 C.F.R. § 20.704(e) (2011). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the rating period on appeal, prior to August 8, 2008, the Veteran's hearing loss has been manifested by no worse than level V hearing loss in the right ear, with level VII hearing loss in the left ear. 2. From August 8, 2008, the Veteran's hearing loss has been manifested by no worse than level V hearing loss in the right ear, with level VI hearing in the left ear. 3. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum schedular rating authorized under the applicable diagnostic code. 4. The Veteran did not file a claim for service connection for tinnitus; rather, the Veteran was afforded a VA examination in February 2007 pursuant to an increased rating claim for hearing loss received on January 5, 2007, and the examiner noted tinnitus was related to service. 5. The RO granted service connection for tinnitus effective January 5, 2007, the date the Veteran's increased rating claim for bilateral hearing loss was received. 6. There is no document in the claims file dated prior to this date that can be construed as a claim, formal or informal, for service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for a 30 percent evaluation, and no higher, for bilateral hearing loss, prior to August 8, 2008, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.85, Diagnostic Code 6100 (2011). 2. The criteria for an evaluation in excess of 20 percent for bilateral hearing loss from August 8, 2008 to the present have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.85, Diagnostic Code 6100 (2011). 3. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A. §1155; 38 C.F.R. §4.87, Part 4, Diagnostic Code 6260 (2011); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 4. An effective date prior to January 5, 2007, for the grant of service connection for tinnitus, is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here the veteran is appealing the initial rating assignment as to his tinnitus, as well as the effective date for the award of service connection for tinnitus. In this regard, because the May 2007 rating decision on appeal granted entitlement to service connection for tinnitus, his filing of a notice of disagreement as to the May 2007 determinations as to the initial rating assignment for his tinnitus, as well as the effective date assigned for the award of service connection for tinnitus, does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2011). Rather, the veteran's appeal as to the initial rating assignment, and earlier effective date for service connection for tinnitus, triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating tinnitus (38 C.F.R. § 4.87, DC 6260). It also contained the applicable law for the assignment of an earlier effective date. The Board also notes that no VCAA notice is necessary for claims regarding earlier effective dates if the outcome of the earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. The Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. A VCAA notice letter was issued in February 2007 as to the increased rating claim for hearing loss, prior to initial adjudication of the claim, consistent with the holding in Pelegrini. The February 2007 letter also apprised the Veteran of the considerations for assignment of a disability rating and/or effective date, in the event of award of a benefit sought. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the Veteran's service treatment records, VA treatment records and afforded the Veteran VA examinations. The examination reports are adequate for adjudicative purposes. The examiners reviewed the Veteran's claims file, examined him and rendered opinions based on their review and sound medical principles. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Earlier Effective Date Pertinent Law and Regulations Applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a)(b)(1); 38 C.F.R. § 3.400. The effective date for an award of disability compensation based on direct service connection is the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Under VA regulations, a "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the law administered by VA. 38 C.F.R. § 3.151. If the Veteran files an informal claim for a benefit, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Analysis The Veteran asserts that he is entitled to an effective date prior to January 5, 2007 for the grant of service connection for tinnitus. The Veteran never filed a claim for service connection for tinnitus, but rather was granted service connection for tinnitus by the RO based on a positive nexus opinion asserted by a February 2007 VA examiner. Such examination was conducted in conjunction with a claim for an increased rating for hearing loss, received on January 5, 2007. The RO granted service connection for tinnitus, effective January 5, 2007, the date the Veteran's increased rating claim for bilateral hearing loss was received. A review of the Veteran's claims file reveals that there is no document dated prior to January 5, 2007 that could be considered a claim, formal or informal, for service connection for tinnitus. The only document filed by the Veteran prior to the Veteran's increased rating claim is a claim for service connection for bilateral hearing loss dated in February 1984. Thus, even if, as the Veteran argues, his entitlement to service connection arose prior to January 5, 2007, the effective date for the grant of service connection for tinnitus is the later of the date entitlement arose or the date of receipt of claim. Thus, the preponderance of the evidence is against the claim for an effective date prior to January 5, 2007 for service connection for tinnitus. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As previously noted, in May 2007, the RO granted service connection for tinnitus and provided a 10 percent evaluation for the disability. The Veteran appealed that determination. Because the Veteran appealed the RO's determination at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the Veteran's claim of entitlement to an increased rating for his service-connected bilateral hearing loss, which is not a disagreement with an initial rating decision, although the evaluation of a service-connected disability requires a review of the Veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Pertinent regulations provide that an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, 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. 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). Analysis Bilateral hearing loss The Veteran asserts that the 20 percent rating for bilateral hearing loss does not accurately reflect its severity. In February 2007, the Veteran underwent an authorized VA audiological evaluation. The pertinent pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 30 65 65 LEFT 35 35 70 75 Speech audiometry revealed speech recognition ability of 72 in the right ear and 56 percent in the left ear. The average puretone threshold for the right ear was 50 decibels. The average puretone threshold for the left ear was 54 decibels. The findings of the February 2007 evaluation translates to level V hearing loss in the right ear and level VII hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a 30 percent rating and no higher under Table VII. Therefore, a disability evaluation of 30 percent is warranted under Diagnostic Code 6100. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board notes that the audiologist stated that the Veteran's hearing need to be retested as there was a discrepancy between pure tone and speech thresholds. In addition, word recognition scores were obtained with poor reliability. The audiologist stated that a new exam was also necessary due to drainage from the right ear canal. VA medical records show that the Veteran's ears were cleaned in May and August 2007. After his ears were cleaned, August 8, 2008 records show that his hearing improved. On August 8, 2008, the Veteran underwent an authorized VA audiological evaluation. The pertinent pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 60 80 LEFT 30 35 90 90 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 80 percent in the left ear. The average puretone threshold for the right ear was 51 decibels. The average puretone threshold for the left ear was 61 decibels. The findings of the August 8, 2008 evaluation translates to level IV hearing loss in the right ear and level IV hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a 10 percent rating and no higher under Table VII. Therefore, the evidence shows that the Veteran's hearing improved since the last examination. 38 C.F.R. § 4.85, Diagnostic Code 6100. In December 2009, the Veteran underwent an authorized VA audiological evaluation. The pertinent pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 45 70 86 LEFT 45 45 95 100 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 72 percent in the left ear. The average puretone threshold for the right ear was 60 decibels. The average puretone threshold for the left ear was 71 decibels. The findings of the August 8, 2008 evaluation translates to level V hearing loss in the right ear and level VI hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a 20 percent rating and no higher under Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. Thus, as the Veteran's hearing has been productive of different ratings under Table VII, the Board has determined that staged ratings are appropriate in this case. See Hart. Therefore, the Veteran's bilateral hearing loss warrants a 30 percent rating prior to August 8, 2008 due to the findings under Table VII. From August 8, 2008 to December 7, 2009 the Veteran's bilateral hearing loss warrants a 10 percent rating; however, as this would afford the Veteran a decrease in benefits, the Board will leave the Veteran's bilateral hearing loss at a 20 percent evaluation for that period. From December 8, 2009 to the present the Veteran's hearing loss warrants a 20 percent rating, and no higher, pursuant to Table VII. The Board is cognizant of the Veteran's contentions concerning his hearing difficulty. However, as previously noted, 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. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The requirements of 38 C.F.R. § 4.85 set out the numeric levels of impairment required for each disability rating, and those requirements are mandatory. The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary and precedent opinions of the General Counsel of the VA. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2010). Tinnitus With regard to the Veteran's request for an initial evaluation in excess of 10 percent for tinnitus, the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, there is no provision for assignment of a separate 10 percent evaluation for tinnitus of each ear. Diagnostic Code 6260 limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Extraschedular Evaluation Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's bilateral hearing loss and tinnitus are fully contemplated by the applicable rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Moreover, there is no evidence of marked interference with employment or frequent hospitalization due to the bilateral hearing loss or tinnitus, and no indication that Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular evaluation for any of the service-connected disabilities addressed herein is not warranted. 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence thus weighs against the Veteran's claim for a higher rating for tinnitus. The Veteran warrants an increased rating for his bilateral hearing loss prior to August 8, 2008, but subsequently his 20 percent evaluation for bilateral hearing loss is continued. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to a rating of 30 percent, and no higher, for bilateral hearing loss, prior to August 8, 2008, is granted. Entitlement to a rating in excess of 20 percent for bilateral hearing loss from August 8, 2008 is denied. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date prior to January 5, 2007, for the grant of service connection for tinnitus, is denied. REMAND The Court has held that TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2011). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2011) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board acknowledges that the Veteran is unemployed. He has been disabled since 2006. The Veteran worked as a dog warden, ran some heavy equipment for the road department and worked for the post office. While the Veteran has been afforded several VA examinations, an opinion as to his unemployability and the effect of his service-connected bilateral hearing loss and tinnitus on his employability must be rendered. It is noted that service connection for other disabilities are not in effect. The Board finds that it would be helpful to afford an appropriate VA examination to determine whether the Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected bilateral hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice that provides notification regarding the evidence needed to substantiate the claim for entitlement to TDIU. 2. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on his employability. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected bilateral hearing loss and tinnitus. The examination report must include a complete rationale for all opinions and conclusions expressed. 3. Readjudicate the issue on appeal. If all the desired benefit is not granted, a supplemental statement of the case should be furnished to the Veteran and his representative. The case should then be returned to the Board if otherwise in order. The appellant 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 claim must be afforded expeditious treatment. The law requires that all claims that are 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.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs