Citation Nr: 0524739 Decision Date: 09/12/05 Archive Date: 09/21/05 DOCKET NO. 97-15 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased (compensable) rating for hearing loss disability. 2. Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARINGS ON APPEAL Appellant and C.N.B., M.D. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from September 1984 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to an increased rating for lumbosacral strain 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. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Smith v. Nicholson, 19 Vet. App. 63 (2005), that reversed a decision of the Board of Veterans' Appeals (Board) which concluded that no more than a single 10-percent disability evaluation could be provided for tinnitus, whether perceived as bilateral or unilateral, under prior regulations. The United States Department of Veterans Affairs (VA) disagrees with the Court's decision in Smith and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, the Secretary of Veterans Affairs has imposed a stay at the Board on the adjudication of tinnitus claims affected by Smith. The specific claims affected by the stay include (1) all claims in which a claim for compensation for tinnitus was filed prior to June 13, 2003, and a disability rating for tinnitus of greater than 10 percent is sought; and (2) all claims in which a claim for service connection for tinnitus filed prior to June 10, 1999, was denied on the basis that the veterans' tinnitus was not "persistent" for purposes of 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Once a final decision is reached on appeal in the Smith case, the adjudication of any tinnitus cases that have been stayed will be resumed. FINDING OF FACT The veteran's hearing loss is manifested by no more than Level I hearing impairment in each ear. CONCLUSION OF LAW The criteria for an increased (compensable) rating for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.§ Part 4, Diagnostic Code 6100 (1998, 2004). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). To implement the provisions of the law, the VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The amendments became effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which became effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The Act and implementing regulations eliminate the concept of a well- grounded claim and redefine the obligations of VA with respect to the duty to assist. First, VA has a duty to notify the claimant and his or her representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. VA must inform the claimant of any information and 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. In what can be considered a fourth element of the requisite notice, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g). VA has satisfied its duty to notify by means of an August 2004 letter from the RO to the claimant. In this case, the claimant was informed of the duty to notify, the duty to assist, to obtain records, and examinations or opinions. The claimant was specifically advised of the type of evidence which would establish the claim and the claimant was afforded additional time to submit such evidence. Thus, the claimant has been provided notice of what VA was doing to develop the claim, notice of what the claimant could do to help the claim and notice of how the claim was still deficient. The claimant was also provided notice that he should submit pertinent evidence in his possession. The claimant was advised of how and where to send this evidence and how to ensure that it was associated with his claim. Thus, in sum, the claimant was informed of the duty to notify, the duty to assist, to obtain records, and opinions. The claimant was specifically advised of the type of evidence that would establish the claim. The claimant has been provided notice of what VA was doing to develop the claim, notice of what the claimant could do to help the claim and notice of how the claim was still deficient. However, only after the January 1997 rating decision was promulgated did the AOJ, in August 2004, provide explicit notice to the claimant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Specifically, the claimant was notified that VA has a duty to assist him in obtaining evidence necessary to substantiate his claims. The claimant was notified that he should give VA enough information about his records so that we could request them from the person or agency that has them. He was told that it was his responsibility to make sure VA receives all requested records that are not in the possession of a Federal department or agency. A VCAA letter was not sent before the January 1997 decision since the VCAA was not in effect at that time. While the notice provided to the claimant in August 2004 was not given prior to the first AOJ adjudication of the claim, the claimant was afforded the opportunity to identify medical evidence that VA would attempt to obtain. After the notice, no additional evidence was received. The process carried out during the course of the claim has provided the claimant with a meaningful opportunity to participate effectively in the processing of his claim by VA. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The timing of notice did not affect the essential fairness of the adjudication. Id. Second, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In the instant case, VA has made efforts to develop the record. VA examinations were conducted in November 1996 and August 2002. The records satisfy 38 C.F.R. § 3.326. The Board finds that VA has done everything reasonably possible to assist the claimant. Accordingly, the Board concludes it should proceed, as specific notice as to what evidence the claimant could or should obtain has been provided in effect and no additional pertinent evidence was submitted. There is no indication that there is any additional relevant competent evidence to be obtained either by the VA or by the claimant, and there is no other specific evidence to advise him/her to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). The claimant has had sufficient notice of the type of information needed to support the claim and the evidence necessary to complete the application. Therefore, the duty to assist and notify as contemplated by applicable provisions, including VCAA, has been satisfied. As such, the Board finds that the development requirements of the VCAA have also been met. VA has done everything reasonably possible to assist the claimant. Accordingly, appellate review may proceed. Hearing loss disability The veteran has appealed the denial of an increased evaluation for bilateral hearing loss disability. He contends in essence that it is compensable. He notes that he has been fitted with hearing aids. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The regulatory criteria governing the evaluations of the veteran's bilateral hearing loss and tinnitus changed while his claim was pending. The applicable criteria are found at 38 C.F.R. Part 4, Diagnostic Code 6100 (1998, 2004). The Board finds that neither version is more favorable to the appellant. The disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned, and this is after specific audiometric tests are performed. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. On VA audiological examination in November 1996, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 15 40 35 LEFT 15 40 60 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. On VA audiological examination in August 2002, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 20 55 50 LEFT 20 65 65 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. At the time of the November 1996 VA audiological examination, the veteran was shown to have an average puretone hearing loss in the right ear of 25 decibels and an average puretone hearing loss in the left ear of 41 decibels, with 94 percent speech discrimination in the right ear and 94 percent in the left ear, which translates to level I hearing in the right ear and level I hearing in the left ear. At the time of the August 2002 VA audiological examination, the veteran was shown to have an average puretone hearing loss in the right ear of 34 decibels and an average puretone hearing loss in the left ear of 54 decibels, with 96 percent speech discrimination in the right ear and 94 percent in the left ear, which translates to level I hearing in the right ear and level I hearing in the left ear. The level of impairment shown is commensurate with a noncompensable rating under both the old and the new rating provisions. See 38 C.F.R. § 4.85, Tables VI and VII (1998, 2004). The Board has considered the provisions of 38 C.F.R. § 4.86, which indicate that when the puretone threshold at each of the four specified frequencies is 55 decibels or more, the rating specialist will use Table VI or IVa, whichever results in the higher numeral. They also indicate that when puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will use Table VI or Via, whichever results in the higher numeral. The Board notes that the veteran's test results do not warrant application of these rules. In March 2004, the veteran testified about what he was told about audiometric test results a few months beforehand. However, he is not competent to relate the results of audiometric testing. Robinette v. Brown, 8 Vet. App. 69 (1995). The preponderance of the evidence is against the claim and there is no doubt to be resolved. Preliminary review of the record reveals that the RO expressly considered an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2004) for the claim on appeal. This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The U.S. Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2004) in the first instance. However, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board notes that marked interference with work or recent hospitalizations due to the disability at issue are not claimed or shown. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). ORDER Entitlement to an increased (compensable) rating for bilateral hearing loss disability is denied. REMAND Lumbosacral strain The Board remanded the lumbosacral strain claim to the RO in June 2004 for a VA examination to determine the severity of the veteran's low back disorder. As the Board previously noted, the schedular criteria for rating back disabilities changed during the pendency of the veteran's appeal. The new criteria are effective September 26, 2003. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There is insufficient evidence to evaluate the veteran's low back disability under the revised criteria. After the Board's last remand, MAS scheduled and then cancelled the examination. The veteran's representative testified at the hearing in May 2005 that neither he nor the veteran received advanced notice of the examination, and that the veteran is willing to report for the examination. Regardless, there is nothing in the file that indicates that the veteran was informed of the consequences of failure to report. 38 C.F.R. § 3.655 (2004). In June 2005, a private physician indicated that the veteran should be assigned medical diagnostic codes which reflect sciatica and erectile dysfunction. To assist the veteran, the Board will request the examiner to provide additional information concerning sciatica and erectile dysfunction. Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: The AOJ should schedule the veteran for a VA examination to determine the severity of his low back disorder. All findings should be reported in detail. The examiner should indicate whether the veteran has sciatica and erectile dysfunction, what their etiology is, and whether they are related to the veteran's service-connected lumbosacral strain disability. The examiner should review the claims folder, which should be made available to the examiner. A complete rationale should accompany any opinion provided. The AOJ shall comply with 38 C.F.R. § 3.655. The AOJ should document notification of the time and date of the examination and compliance with 38 C.F.R. § 3.655. If upon completion of the above action the claim remains denied, the case should be returned after compliance with requisite appellate procedures. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). If the veteran has or can obtain evidence, that evidence must be submitted by him. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs