Citation Nr: 0810540	
Decision Date: 03/31/08    Archive Date: 04/09/08

DOCKET NO.  05-29 755	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


ISSUES

1.  Entitlement to a compensable rating for hearing loss.

2.  Entitlement to an initial disability rating in excess of 
10 percent for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Childers, Associate Counsel


INTRODUCTION

The veteran had active military service from September 1944 
to June 1946, and from March 1952 until his retirement in 
August 1975.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions issued in January and 
August 2004 by the Department of Veterans Affairs (VA) 
Regional Office (RO) in St. Petersburg, Florida.  The January 
2004 rating decision denied the veteran's claim for a 
compensable rating for his service-connected bilateral 
hearing loss.  The August 2004 rating decision granted 
service connection for tinnitus with an evaluation of 10 
percent effective March 3, 2004.  

The Board notes that in his August 2005 substantive appeal 
(Form 9) the veteran stated that he was appealing the 
"decision to lower [his] rating for hearing loss from 10 % 
down to 0 %," but review of the record reveals that the 
veteran never had an assigned rating of 10 percent for his 
bilateral hearing loss.  Instead, pursuant to 38 C.F.R. § 
3.324 a 10 percent rating was assigned effective September 1, 
1975, because the veteran had two or more noncompensable 
disabilities; not for his service-connected bilateral hearing 
loss.  

In March 2008, the Board has granted the veteran's request to 
have this case advanced on the Board's docket.


FINDINGS OF FACT

1.  The veteran's service-connected tinnitus is assigned a 10 
percent rating, the maximum rating authorized under 
Diagnostic Code 6260.  

2.  The veteran has bilateral hearing loss, but his Level I 
hearing loss does not meet the schedular requirements for a 
compensable rating.


CONCLUSIONS OF LAW

1.  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 (West 2002); 38 C.F.R. §4.87, Diagnostic 
Code 6260 (2007); Smith v. Nicholson, 451 F.3d 1344 (Fed. 
Cir. 2006). 

2.  The criteria for a compensable rating for bilateral 
hearing loss have not been met during any period of time 
covered by this appeal.  38 U.S.C.A. §§ 1155, 5107 (West 
2002); 38 C.F.R. §§ 4.1, 4.7, 4.85-4.87, Diagnostic Code 6100 
(2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased rating, tinnitus

In a rating decision dated in August 2004 the veteran was 
granted service connection for tinnitus with an evaluation of 
10 percent effective March 3, 2004.  The veteran has appealed 
this initial rating.

Disability ratings are based upon VA's Schedule for Rating 
Disabilities as set forth in 38 C.F.R. Part 4.  The 
percentage ratings represent as far as can practicably be 
determined the average impairment in earning capacity in 
civil occupations.  38 U.S.C.A. § 1155.  A higher evaluation 
shall be assigned where the disability picture more nearly 
approximates the criteria for the next higher evaluation.  38 
C.F.R. § 4.7.  

Under the provisions of Diagnostic Code 6260 a 10 percent 
evaluation is warranted for recurrent tinnitus.  38 C.F.R. § 
4.87, Diagnostic Code 6260.  The rating schedule does not 
provide for a higher evaluation for tinnitus.  See 38 C.F.R. 
§§ 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260; see 
also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006)  

The veteran's service-connected tinnitus has already been 
assigned the maximum schedular rating of 10 percent for 
tinnitus.  38 C.F.R. §4.87, Diagnostic Code 6260.  As there 
is no legal basis upon which to grant a higher rating, the 
veteran's appeal must be denied.  Sabonis v. Brown, 
6 Vet. App. 426 (1994).  The provisions of the Veterans 
Claims Assistance Act have no effect on an appeal where the 
law, and not the underlying facts or development of the 
facts, is dispositive in a matter.  Manning v. Principi, 16 
Vet. App. 534, 542-543 (2002). 

II.  Increased rating, hearing loss

In addition to the foregoing, the veteran seeks a compensable 
rating for his bilateral hearing loss disability.

Hearing loss ratings range from noncompensable to 100 percent 
based on organic impairment of hearing acuity, as measured by 
controlled speech discrimination tests in conjunction with 
average hearing thresholds determined by puretone audiometric 
testing at frequencies of 1000, 2000, 3000 and 4000 cycles 
per second.  "Puretone threshold average" is the sum of the 
puretone thresholds at 1000, 2000, 3000 and 4000 Hertz 
divided by four.  This average is used in all cases 
(including those in §4.86) to determine the Roman numeral 
designation for hearing impairment from Table VI or VIa.  
38 C.F.R. § 4.85, Diagnostic Code 6100 (2007).

The rating schedule establishes eleven auditory acuity 
levels, designated from Level I for essentially normal 
hearing acuity, through Level XI for profound deafness.  
38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 
C.F.R. § 4.85) represent nine categories of the percentage of 
discrimination based on the controlled speech discrimination 
test.  The vertical columns in Table VI represent nine 
categories of decibel loss based on the puretone audiometry 
test.  The Roman numeral designation is located at the point 
where the percentage of speech discrimination and puretone 
threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87. 

The regulations also 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 Roman numeral designation will be 
determined for hearing impairment, separately, from either 
Table VI or Table VIa, whichever results in the higher 
numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will 
also be determined from either Table VI or Table VIa, 
whichever results in the higher numeral, when the puretone 
threshold is 30 decibels or less at 1000 Hertz, and 70 
decibels or more at 2000 Hertz.  That numeral will then be 
elevated to the next higher Roman numeral.  

While the veteran's entire history is reviewed when assigning 
a disability evaluation (38 C.F.R. § 4.1), where service 
connection has already been established and an increase in 
the disability rating is at issue, it is the present level of 
disability that is of primary concern. Francisco v. Brown, 7 
Vet. App. 55 (1994).  However, the United States Court of 
Appeals for Veterans Claims (Court) has recently held that in 
determining the present level of a disability for any 
increased evaluation claim, the Board must consider the 
application of staged ratings.  See Hart v. Mansfield, 21 
Vet. App. 505 (2007).  In other words, where the evidence 
contains factual findings that demonstrate distinct time 
periods in which the service-connected disability exhibited 
diverse symptoms meeting the criteria for different ratings 
during the course of the appeal, the assignment of staged 
ratings would be necessary.  Id.

In November 2003 the veteran was accorded a compensation and 
pension (C&P) audiology examination.  During the examination 
he reported difficulty hearing in all situations.  Testing 
revealed puretone averages of 41.25 decibels for the right 
ear and 46.25 decibels for the left ear, and speech 
recognition scores of 92 for each ear.  The examiner added 
that "speech discrimination was excellent, bilaterally."  
These findings correspond to Level I hearing in each ear, 
which is noncompensable.  38 C.F.R. § 4.85, Tables VI and 
VII.

In July 2004 the veteran was accorded a C&P ear disease 
examination.  During the examination he reported that his 
hearing loss had progressed in the last five to six years, 
but denied any dizziness, trauma, or recurrent infections.  
Physical examination revealed tympanic membranes and external 
auditory canals within normal limits.  Audiology testing was 
not done.

In February 2005 the veteran underwent another C&P audiology 
examination.  During the examination he reported that his 
greatest hearing difficulty "is in crowds and around party 
noise and background noise."  Testing revealed puretone 
averages of 43.75 decibels for the right ear and 50 decibels 
for the left ear, and speech recognition scores of 100 for 
the right ear and 94 for the left ear.  The examiner added 
that "speech discrimination is excellent, bilaterally."  
These findings correspond to Level I hearing in each ear, 
which is noncompensable.  38 C.F.R. § 4.85, Tables VI and 
VII.  

In sum, while the evidence confirms that the veteran's 
hearing has worsened, his hearing thresholds still do not 
meet the criteria for a compensable rating.  Accordingly, the 
veteran's claim for an increased rating for bilateral hearing 
loss must be denied.  

The Board has considered whether a staged rating is 
appropriate; however, the record contains no evidence that 
supports a compensable rating at any time during the period 
on appeal.  Hart, 21 Vet. App. 505.  

The Board has considered the doctrine of reasonable doubt; 
however, hearing evaluations are performed by mechanically 
applying the rating criteria to certified test results.  
Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such 
there is no basis to establish a higher rating than the 
assigned noncompensable rating.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.  

Referral for consideration of an extra-schedular rating was 
also considered in this case under 38 C.F.R. § 3.321(b)(1); 
however, the record contains no objective evidence that the 
veteran's bilateral hearing loss has resulted in marked 
interference with his earning capacity or employment beyond 
that interference contemplated by the assigned evaluation, or 
that it has necessitated frequent periods of hospitalization.  
The Board therefore finds that the impairment resulting from 
the veteran's bilateral hearing loss is appropriately 
compensated by the currently assigned schedular ratings.  
Referral by the RO to the Director of VA's Compensation and 
Pension Service, under 38 C.F.R. § 3.321, is thus not 
warranted.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), 
the United States Court of Appeals for Veterans Claims 
(Court), noted that VA had revised its hearing examination 
worksheets to include the effect of the veteran's hearing 
loss disability on occupational functioning and daily 
activities.  See Revised Disability Examination Worksheets, 
Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 
24, 2007); see also 38 C.F.R. § 4.10 (2007).  The Court also 
noted, however, that even if an audiologist's description of 
the functional effects of the veteran's hearing disability 
was somehow defective, the veteran bears the burden of 
demonstrating any prejudice caused by a deficiency in the 
examination.

In this case, the C&P examinations were conducted before the 
examination worksheets were revised to include the effects of 
hearing loss disability on occupational functioning and daily 
life.  Even so, the examiners noted the veteran's complaints 
of difficulty hearing, particularly in crowds, around party 
noise, and background noise.  Thus, the examination report 
did include information concerning how the veteran's hearing 
loss affects his daily functioning.  However, the evidence 
does not show that the veteran's difficulty hearing in crows 
has resulted in marked interference with employment. 

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  Upon receipt 
of a complete or substantially complete application for 
benefits, VA is required to notify the claimant and his 
representative of any information and medical or lay evidence 
that is necessary to substantiate the claim. 38 U.S.C.A. § 
5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio 
v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice 
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; (3) that the claimant is 
expected to provide; and (4) must ask the claimant provide 
any evidence in his possession that pertains to the claim in 
accordance with 38 C.F.R. § 3.159(b)(1).  VCAA notice should 
be provided to the claimant before the initial unfavorable 
agency of original jurisdiction (AOJ) decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).  
Notice which informs the veteran of how VA determines 
disability ratings and effective dates should also be 
provided.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006)

In a recently issued decision the Court also held that with 
regard to claims for increased-compensation, 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.  See Vazquez-Flores v. 
Peake, No. 05-0355 (U.S. Vet. App. January 30, 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 as well.  Id.  

The evidence shows that VA has met the notice and duty to 
assist provisions of the VCAA.  A letter from the RO dated in 
September 2003 satisfied the duty to notify provisions.  The 
veteran was apprised of the information and evidence 
necessary to establish his claim for an increased rating.  He 
was advised of the evidence that VA would seek to provide; 
and of the information and evidence that he was expected to 
provide.  He was also advised of how VA determines effective 
dates in a letter dated in March 2006.  See Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006).  Although it is 
unclear from the record whether the veteran was explicitly 
asked to provide "any evidence in [his] possession that 
pertains" to his clam (see 38 C.F.R. § 3.159(b)(1)), as a 
practical matter the Board finds that he has been notified of 
the need to provide such evidence since the letter informed 
him that additional information or evidence was needed to 
support his claims, and asked him to send the information or 
evidence to the AOJ.  

With regard to the Court's ruling in Vazquez-Flores decision, 
the Board notes that the veteran has argued that a higher 
evaluation for his service-connected hearing loss disability 
was warranted.  Moreover, upon receipt of the veteran's 
request for an increased rating he was accorded three C&P 
examinations; the reports of which are of record.  In 
addition, he was provided with the applicable rating criteria 
for hearing loss in the August 2005 statement of the case.  
Based on the various exchanges between the veteran and VA 
with regard to his claim for an increased rating and 
applicable rating criteria, the veteran is reasonably 
expected to understand the types of evidence that would 
support his claim for a higher rating.  

Regarding the duty to assist, the veteran has been accorded 
numerous C&P examinations; the reports of which are of 
record.  The Board is thus satisfied that VA has sufficiently 
discharged its duty in this matter.  Smith v. Gober, 14 Vet. 
App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela 
Cruz v. Principi, 15 Vet. App. 143 (2001); see also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

A rating in excess of 10 percent for tinnitus is denied.

A compensable rating for bilateral hearing loss is denied.



____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs