Citation Nr: 0810417 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 95-16 870A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable evaluation for service- connected tinnitus, prior to June 10, 1999. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active duty from October 1964 to October 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 1995 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In an August 2002 decision, the Board denied the veteran's appeal. The veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, 'the Court'). In a September 2003 Order, the Court vacated the Board's August 2002 decision and remanded the matter to the Board. The Board then remanded the case in January 2004. In March 2005, the Board again denied entitlement to an initial compensable evaluation for tinnitus prior to June 10, 1999. The veteran again appealed the Board's decision to the Court. In an April 2007 decision, the Court vacated the Board's March 2005 decision as to the denial of an initial compensable evaluation for tinnitus prior to June 10, 1999, and remanded the issue to the Board. All other issues addressed in the March 2005 Board decision were affirmed by the Court. FINDING OF FACT Prior to June 10, 1999, the veteran's service-connected tinnitus was not persistent. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for service-connected tinnitus, prior to June 10, 1999, have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. Part 4, including Diagnostic Code 6260 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. In this case, the veteran has previously appealed the matter to the Court. The Board notes that neither the appellant's contentions nor the Court's order identified any deficiency in VCAA notice or assistance in this case. In any event, the Board has reviewed the claims folder to determine compliance with all applicable requirements. After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. In a letter sent in January 2004, the claimant was informed of the information and evidence necessary to warrant entitlement to the benefit sought. Moreover, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board notes that the January 2004 letter was sent to the appellant prior to the most recent RO readjudication of the issues on appeal in connection with the issuance of a March 2004 supplemental statement of the case. The VCAA notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet.App. 112 (2004). The Board also notes that the January 2004 letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. Therefore, the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded. Id. at 488. In the present appeal, there has been no timely notice of the types of evidence necessary to establish particular ratings and effective dates for any ratings that may be granted. Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant 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 appellant has been prejudiced thereby). The Board finds that the record amply demonstrates that the veteran, his appointed representative before VA, and his private counsel in appealing this matter to the Court, possess actual knowledge of the information required by the Dingess/Hartman holding. In particular, the veteran has advanced the contention that his tinnitus was persistent during the period on appeal; this contention relates directly to the applicable criteria for obtaining the higher rating sought; this key contention and the applicable law has been discussed in particular detail by the veteran's private counsel in a July 2006 appellant's brief, and in a July 2002 informal brief from the veteran's National service organization. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Although all of the requirements of Vazquez-Flores have not been met in the instant case, the Board finds that the notice error did not affect the essential fairness of the adjudication. The veteran has very specifically contended that he experienced persistent tinnitus during the period under appeal, demonstrating that he had actual knowledge of the requirements for an increased rating. Further, the veteran is represented by a National service organization, and has been represented by a private attorney in appealing this matter to the Court; both the National service organization and the private attorney have demonstrated their actual knowledge of the information necessary to substantiate the veteran's claim in submissions dated July 2002 and July 2006, respectively. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet.App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Thus, as the veteran had actual knowledge of the requirements for an increased rating and sufficient opportunity to submit evidence, despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant 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 appellant has been prejudiced thereby). Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records, in-service, private, and VA, have been obtained. The veteran has been afforded multiple VA examinations to evaluate his ears and tinnitus symptoms in this appeal; VA examination reports dated November 1996, September 1999, and December 2001 are of record. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to this appeal. Under these circumstances, no further action is necessary to assist the claimant with this appeal. Analysis The present appeal involves the veteran's claim of entitlement to a higher initial disability rating for his service connected tinnitus. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). In this case, the period of time that remains under consideration in this appeal dates from the initial assignment of service connection for tinnitus until June 10, 1999. Tinnitus disability is rated under Diagnostic Code 6260. The provisions of the rating criteria governing the evaluation of service-connected tinnitus were changed, effective June 10, 1999. 64 Fed. Reg. 25208, 25209 (May 11, 1999). Under DC 6260, in effect prior to June 10, 1999, a maximum 10 percent rating was assigned for tinnitus that was persistent as a symptom of head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a, DC 6260 (1998). For the period from June 10, 1999 to June 12, 2003, Diagnostic Code 6260 provided that if tinnitus is shown to be recurrent, a maximum 10 percent evaluation is warranted. 38 C.F.R. § 4.87, Diagnostic Code 6260 (in effect from June 10, 1999 to June 12, 2003). Under the regulations in effect from June 13, 2003, a disability of tinnitus, recurrent warrants an evaluation of 10 percent. This is the maximum rating available under this Diagnostic Code. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Note (1) of this code provides 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. Note (2) provides that a single evaluation is to be assigned for recurrent tinnitus, whether the sound is perceived in one ear or both ears, or in the head. Note (3) provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not evaluated under this diagnostic code, but as part of any underlying condition causing it. 38 C.F.R. § 4.87 (2007). Moreover, in VAOPGCPREC 2-2003 (May 22, 2003), the VA General Counsel held that Diagnostic Code 6260, as in effect prior to June 10, 1999 and as amended as of that date, authorized a single 10 percent disability rating for tinnitus, regardless of whether tinnitus is perceived as unilateral, bilateral, or in the head. When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded. 38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet.App. 461, 467 (1997); VAOPGCPREC 3-2000. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, none of the amendments may be applied to period prior to June 10, 1999 on appeal. In general, 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 the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. However, in cases involving a claim for an increased evaluation, the effective date may be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). The essential question of controversy in this case is whether the veteran's service connected tinnitus was "persistent" prior to June 10, 1999. The Board acknowledges that the nature of tinnitus prevents any useful reliance upon objective medical indications, and that the symptoms of tinnitus can essentially be assessed only through evaluation of the veteran's report of experiencing the characteristic symptom of auditory 'ringing.' Thus, the Board's consideration of whether the veteran's tinnitus was persistent prior to June 10, 1999, focuses upon the documented instances of record in which the veteran has described his own tinnitus symptoms. The veteran currently contends, as first clearly expressed in his December 2001 VA audiology examination report, that he suffers from "constant, moderate, tonal tinnitus AS [left ear], onset 1965." The veteran is competent to report that he experiences constant tinnitus and he is competent to report his current recollection that his tinnitus has been constant since 1965. Falzone v. Brown, 8 Vet.App. 398, 405- 406 (1995) (lay statements about a person's own observable condition or pain are competent evidence); Layno v. Brown, 6 Vet.App. 465, 469-470 (1994) (lay testimony is competent when it regards features or symptoms of injury or illness); Charles v. Principi, 16 Vet.App. 370, 374- 75 (2002) (finding veteran competent to testify to symptomatology capable of lay observation). The veteran's December 2001 account of his tinnitus history certainly supports his claim and has probative value. However, as discussed below, the Board finds that the veteran's prior documented statements on the subject are of greater probative value and weigh against the veteran's claim. The Board finds that the veteran's December 2001 statement of his recollection of his tinnitus history is inconsistent with earlier contemporaneous documentation of his prior descriptions of his tinnitus. Most significantly in this regard, the record contains a February 1995 VA audiology examination report which clearly and unambiguously addresses the veteran's account of his tinnitus and shows the veteran described his tinnitus as intermittent at that time, with no indication of constant or persistent tinnitus. The February 1995 report discusses the information obtained from interviewing the veteran, including that "his left ear rings, although inconsistently." Based upon the veteran's own description of his tinnitus symptoms at that time, the examiner diagnosed the veteran with "intermittent high frequency tinnitus A.S." Thus, the record reflects that in 1995 the veteran specifically described his own tinnitus symptoms as inconsistent and intermittent; this is in direct conflict with his later statements to the effect that his tinnitus had been constant since 1965. With regard to the question of whether the veteran's tinnitus was persistent during the period from 1989 into 1999, the Board finds that the veteran's own contemporaneous description of the tinnitus from 1995 is of greater probative value than his hindsight recollection of his past tinnitus experience stated in December 2001 and later. Additionally, the Board notes that a November 1996 VA audiology examination report contains a detailed accounting of the veteran's reported symptoms impacting his hearing at that time. At the time of the November 1996 examination, the veteran was already service connected for tinnitus and was being evaluated in connection with a sought increase in disability compensation for his disabilities of the ears. In the Board's view, it is reasonable to expect that any persistent tinnitus would have been reported to the examiner under these circumstances, but the November 1996 examination report contains no reference to any tinnitus symptoms whatsoever. The absence of any documented reference to tinnitus whatsoever during this examination, which included a clinical evaluation of the veteran's hearing acuity in both ears, suggests that the veteran was not experiencing tinnitus during the examination. This suggestion is not inconsistent with the veteran's February 1995 statement that his tinnitus was intermittent rather than persistent. The November 1996 examination report does not tend to corroborate the veteran's current contention that his tinnitus was persistent throughout the period prior to June 10, 1999. The Board finds that the November 1996 examination report presents suggestive evidence which does not corroborate the veteran's current contentions regarding persistent tinnitus, and the report is more consistent with the veteran's February 1995 description of merely intermittent tinnitus. The Board also notes a September 1999 VA examination report which contains the veteran's earliest documented statement asserting that his tinnitus was constant or persistent. In this regard, the September 1999 report shows "Constant 'moderate' tinnitus AS by [patient] report." Additionally, the report notes a reported history of "constant L tinnitus for several years." The Board has carefully considered this report, especially as it is the earliest documented indication of the veteran reporting any history of persistent rather than intermittent tinnitus. However, the Board finds that this report does not persuasively show constant tinnitus in the pertinent period prior to June 10, 1999. The September 1999 report may be uncontradicted to the extent that it shows a complaint of persistent tinnitus in September 1999, but this is not significant as the veteran is already in receipt of the maximum schedular rating for tinnitus as of September 1999. To the extent that the September 1999 report shows a recollection of constant tinnitus for "several years" prior, the Board does not find the report to be sufficiently specific or persuasive to support a finding of a period of persistent tinnitus prior to June 10, 1999. If the veteran's September 1999 account of persistent tinnitus for "several years" is understood to indicate that persistent tinnitus existed prior to the February 1995 and September 1996 VA examination reports, then the veteran's account of his symptoms on those earlier VA examination reports contradict the September 1999 account. If, instead, the veteran's September 1999 account of persistent tinnitus for "several years" is understood to indicate a transition from intermittent tinnitus to persistent tinnitus at some point following the February 1995 and November 1996 examinations, then the September 1999 account appears to be contradicted by his subsequent December 2001 statement that his tinnitus has been persistent since 1965. Under either interpretation, the September 1999 VA examination report's reference to constant or persistent tinnitus is inconsistent with the veteran's other statements and, thus, is accorded little probative value with regard to determining whether the veteran's tinnitus was persistent prior to June 10, 1999. The Board has given proper consideration to the entirety of the veteran's documented medical history in evaluating this issue on appeal. The Board notes that the veteran's service medical records reflect numerous instances of complaints and consultation for significant ear symptoms, including pain, bleeding, and hearing problems. On only one of these occasions is it shown that the veteran report any symptoms suggestive of tinnitus: in April 1966 the veteran is shown to have reported that his ears "are ringing at present and have [bled] in the past." As this is the only suggestion of tinnitus in any service medical record, and as the service medical records otherwise document a number of recurring ear symptoms prior to and following the April 1966 consultation, the Board does not find that the service medical records help to corroborate the veteran's December 2001 statement that his tinnitus has been constant since 1965. Moreover, there is an absence of any contemporaneous evidence of the veteran reporting any tinnitus symptoms at all during his September 1968 separation examination or for more than 26 years following service; this does not offer any corroboration of the veteran's current contention of constant tinnitus since 1965. Medical records, including from June 1987 addressing the veteran's deteriorating "hearing loss" and "damaged ears," show no suggestion of symptoms of tinnitus, much less persistent tinnitus. In particular, the Board emphasizes that the earliest contemporaneous evidence of any post-service complaint of tinnitus, in February 1995, shows the veteran's report of expressly 'inconsistent' of 'intermittent' tinnitus; in light of this, the Board cannot reasonably consider the current contention of persistent tinnitus throughout the period on appeal to be sufficiently persuasive or probative to match the persuasiveness and probative value of the evidence against the contention. When the veteran described his tinnitus in February 1995, he was not yet service connected for the pathology. Only after service connection for tinnitus was granted in May 1995, and the veteran initiated an appeal for additional monetary benefit, did the veteran revise his account to suggest that his tinnitus had been persistent. The Board finds the earlier contemporaneous account of the veteran to be more persuasive in this case than the contrary hindsight accounts offered following the initiation of this appeal. The Board finds that the evidence preponderates against a compensable evaluation for service-connected tinnitus prior to the effective date of the new regulation: June 10, 1999. Prior to that date, persistent tinnitus was necessary for a compensable evaluation and the most probative evidence, featuring the veteran's own contemporaneously documented statements during the period prior to June 10, 1999, shows intermittent rather than persistent tinnitus. A compensable evaluation for merely 'recurrent' tinnitus is permitted under the regulation effective from June 10, 1999 only. The 10 percent evaluation, due to the amended Schedule, cannot be effective prior to the effective date of the regulation. 38 C.F.R. § 3.114. The Schedule does not provide for any evaluation in excess of 10 percent for tinnitus. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such 'an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards.' 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his service connected tinnitus resulted in marked interference with employment or necessitated frequent periods of hospitalization during the period on appeal. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision. The preponderance of the evidence is against finding entitlement to a compensable rating for tinnitus prior to June 10, 1999. Finally, the Board again acknowledges that the prior March 2005 Board denial of this appellate issue was vacated by the Court for the purpose of having the Board more adequately address three matters to permit effective judicial review. In this regard, the Board has addressed the Court's concerns. First, the Board has now more adequately discussed its application of the pre-June 10, 1999, version of 38 C.F.R. § 4.87, Diagnostic Code 6260. Secondly, the Board has clarified the reasons and bases for finding the appellant's September 1999 testimony less persuasive than the contrary evidence of record, in the context of the pertinent inconsistencies in the veteran's various statements characterizing the nature of his tinnitus. Finally, the Board has also discussed the September 1999 audiological notation of "constant l[eft ear] tinnitus for several years - 'moderate'"; the Board has explained why it finds this notation based upon the veteran's lay testimony to be less persuasive than the contrary evidence of record. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs