Citation Nr: 0810546	
Decision Date: 03/31/08    Archive Date: 04/09/08

DOCKET NO.  05-13 426	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUES

1.  Entitlement to a compensable disability rating for 
bilateral hearing loss. 

2.  Entitlement to separate schedular 10 percent disability 
ratings for tinnitus in each ear.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

A. Hinton, Counsel


INTRODUCTION

The veteran served on active duty from October 1951 to 
October 1953.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Newark, New Jersey (RO).  In that decision the RO continued a 
noncompensable rating for bilateral sensorineural hearing 
loss, and continued a 10 percent disability rating for 
tinnitus.  

In May 2005, the veteran testified before a rating officer at 
the RO.  

This case has been advanced on the Board's docket in 
accordance with the provisions of 38 C.F.R. § 20.900 (c) 
(2007).

 
FINDINGS OF FACT

1.  The veteran's bilateral hearing loss is productive of 
Level I hearing loss in the right ear and Level I hearing 
loss in the left ear.

2.  The veteran experiences recurrent tinnitus in each ear, 
for which the maximum schedular rating of 10 percent is 
assignable.





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CONCLUSIONS OF LAW

1.  The schedular criteria have not been met for a 
compensable disability rating for bilateral hearing loss.  38 
U.S.C.A. § 1155, 5103 (West 2002); 38 C.F.R. Part 4, 
Diagnostic Code 6100 (2007).

2.  There is no legal basis for the assignment of separate 
schedular 10 percent disability ratings for tinnitus in each 
ear.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, 
Diagnostic Code 6260 (2002 & 2006); Smith v. Nicholson, 451 
F.3d 1344 (Fed. Cir. 2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

The Veterans Claims Assistance Act (VCAA) (codified at 
38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 
& Supp. 2007)) imposes obligations on VA in terms of its duty 
to notify and assist claimants.  When VA receives a complete 
or substantially complete application for benefits, it is 
required to notify the claimant and his representative, if 
any, of any information and medical or lay evidence that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In 
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the 
United States Court of Appeals for Veterans Claims (Court) 
held that proper VCAA notice must inform the claimant of any 
information and evidence not of record that is necessary to 
substantiate the claim.  The veteran should be informed as to 
what portion of the information and evidence VA will seek to 
provide, and what portion of such the claimant is expected to 
provide.  Proper notification must also invite the claimant 
to provide any evidence in his possession that pertains to 
the claim in accordance with 38 C.F.R. § 3.159(b)(1). 

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the 
United States Court of Appeals for the Federal Circuit 
(Federal Circuit) held that any error by VA in providing the 
notice required by 38 U.S.C.A. § 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 U. S. Court of Appeals for Veterans Claims has held that 
the statutory and regulatory provisions pertaining to VA's 
duty to notify and to assist do not apply to a claim if 
resolution of that claim is based on statutory 
interpretation, rather than consideration of the factual 
evidence.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 
(2001).  

In this case, the tinnitus claim meets that criteria: The 
facts are not in dispute.  Resolution of the veteran's appeal 
as to the tinnitus claim is dependent on interpretation of 
the regulations pertaining to the assignment of disability 
ratings for tinnitus.  As explained below, the Board finds 
that the veteran is already receiving the maximum schedular 
disability rating available for tinnitus under the applicable 
rating criteria.  Furthermore, regardless of whether the 
veteran's tinnitus is perceived as unilateral or bilateral, 
the outcome of this appeal does not change. 

Therefore, because no reasonable possibility exists that 
would aid in substantiating the tinnitus claim, any 
deficiencies of VCAA notice or assistance associated with 
that claim are rendered moot.  See 38 U.S.C.A. § 5103A; 
Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance 
with the VCAA is not required if no reasonable possibility 
exists that any notice or assistance would aid the appellant 
in substantiating the claim).

With respect to the bilateral hearing loss claim, the RO sent 
the veteran letters in January 2002 and October 2004, which 
satisfied some but not all of the core notice elements 
required by VCAA.  The RO notified the veteran of his and 
VA's respective duties for obtaining evidence, and asked the 
veteran to submit evidence and/or information in his 
possession to the agency of original jurisdiction (AOJ).  The 
information contained in these letters did not, however, 
specifically inform the veteran of what evidence was required 
to substantiate a claim for an increased rating for his 
bilateral hearing loss.  

The RO sent these notice letters before the initial AOJ 
decision in this matter, thereby avoiding any error in timing 
of notice.  To the extent that the letters did not contain 
all required notice elements, the Board finds that this error 
was not prejudicial to the veteran because the actions taken 
by VA after providing the notice have essentially cured the 
error; and because the veteran is shown to have had actual 
knowledge of the evidence required to substantiate a claim 
for an increased rating for bilateral hearing loss.  

In this regard, after appropriate notice was provided in the 
statement of the case, the veteran was given ample time to 
respond before the issue was readjudicated and the veteran 
was provided a supplemental statement of the case.  

The record also reflects that the veteran had actual 
knowledge of the evidence needed to support his claim for an 
increase in rating for bilateral hearing loss.  See Dalton v. 
Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is 
established by statements or actions by the claimant or the 
claimant's representative that demonstrate an awareness of 
what is necessary to substantiate a claim).  
 
The veteran's January 2005 VA examination involved 
audiological examination and the assignment of pure tone 
hearing threshold levels and speech recognition scores that 
paralleled the relevant diagnostic criteria.  These studies, 
and hearing testimony given in May 2005, and statements made 
in the December 2007 informal hearing presentation, reflect 
that a reasonable person could have been expected to 
understand in this case what was needed to substantiate the 
claim.  

Not only has the veteran been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claim and given ample time to respond, but, after 
appropriate notice was provided, the AOJ also readjudicated 
the case as to the appealed claim, and issued a subsequent 
supplemental statement of the case in June 2005.  See 
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where 
notice was not provided prior to the AOJ's initial 
adjudication, this timing problem can be cured by the Board 
remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the AOJ).  The veteran's 
representative has shown knowledge of the requirements which 
appropriate VCAA notice is designed to provide.  For these 
reasons, it is not prejudicial to the appellant for the Board 
to proceed to finally decide this appeal as any notice error 
did not affect the essential fairness of the adjudication.  

With regard to the bilateral hearing loss increased 
evaluation claim, the Board is aware of the Court's recent 
decision in Vazques-Flores v. Peake, 22 Vet. App. 37 (2008).   
        
In Vazquez-Flores, the Court found that, at a minimum, 
adequate VCAA notice requires that: (1) VA notify the 
claimant that, to substantiate such a claim, the claimant 
must provide, or ask VA 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; (2) 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 of 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; (3) 
the claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant diagnostic codes; and (4) the notice 
must also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask VA to obtain) 
that are relevant to establishing entitlement to increased 
compensation.  

In this case, the Board finds that, as discussed above, the 
RO has provided the veteran with notice in substantial 
compliance with the first and fourth requirements of Vazquez-
Flores to the extent that the veteran has been notified that 
he needed to submit evidence of worsening that could include 
specific medical and laboratory evidence, as well as lay 
evidence from other individuals who could describe from their 
knowledge and personal observations in what manner his 
hearing loss disability had worsened.  

The Board is aware that the VCAA letters did not provide the 
type of notification set forth in the second and third 
requirements of Vazquez-Flores.  As such, the veteran has 
received inadequate notice, and the Board must proceed with 
an analysis of whether this error prejudiced him.  See 
Sanders v. Nicholson, 487 F.3d at 889.

The Board has reviewed the record first to determine whether 
the veteran had actual knowledge of the evidence needed to 
support his claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 
30-31 (2007).  Here, the veteran's hearing testimony and 
statements from the representative reflect his familiarity 
with the applicable diagnostic criteria, as would also be 
made apparent in the January 2005 VA examination audiological 
findings.  The VA examination involved such studies that 
paralleled the relevant diagnostic criteria.  These studies 
reflect that a reasonable person could have been expected to 
understand in this case what was needed to substantiate the 
claim.  

The Board notes that the initial notification of the 
applicable rating criteria in the April 2005 Statement of the 
Case was followed up by a Supplemental Statement of the Case 
in June 2005, representing VA action in terms of post-
notification readjudication that served to render any pre-
adjudicatory notice error non-prejudicial.  Vazquez-Flores, 
slip op. at 9.  For all of these reasons, the Board finds 
that any notice errors with regard to the second and third 
requirements of Vazquez-Flores are not prejudicial, inasmuch 
as they did not affect the "essential fairness of the 
adjudication."  Sanders v. Nicholson, 487 F.3d at 889.

Lastly, the assignment of disability ratings for hearing 
impairment are derived by the mechanical application of the 
Rating Schedule to the numeric designations assigned after 
audiometry evaluations are rendered. Lendenmann v. Principi, 
3 Vet. App. 345 (1992).  Once those numeric designations are 
obtained-as done in the January 2005 VA examination, those 
designations are translated into a disability rating by the 
mechanical application of Diagnostic Code 6100.  To the 
extent that any required VCAA notice was lacking, once those 
numeric designations were obtained and translated into a 
rating, there is little to no benefit to the veteran by 
providing him notice as to what evidence is necessary to 
substantiate the claim.

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 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.  

In regard to the bilateral hearing loss claim adjudicated 
below, the Board finds that the veteran is not prejudiced by 
a decision at this time.  In addressing the claim decided 
below, any question of appropriate notice pursuant to Dingess 
is mooted by the denial of the claim.  
 
The statutory notice required by the VCAA is only one part of 
the system of notice required and provided in the VA claim 
adjudication process.  See Wilson v. Mansfield, No. 07-7099 
(Fed. Cir. October 15, 2007).  Under Wilson (citing Hartman 
v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 38 U.S.C.A. 
§ 5103(a) requires only a generic notice after the initial 
claim for benefits has been filed and before the initial 
decision.  It does not apply throughout the claim 
adjudication process as to notice provided after the initial 
decision, because thereafter, other forms of notice-such as 
contained in the rating decision, statement of the case, and 
supplemental statement of the case-provide the claimant with 
notice of law applicable to the specific claim on appeal.  
Id.  The RO has provided the veteran such notice to his 
specific claims throughout the appeal in the statements of 
the case and supplemental statement of the case.

In addition to providing proper notice, VA must also make 
reasonable efforts to assist the claimant in obtaining 
evidence necessary to substantiate the claim for the benefit 
sought, unless no reasonable possibility exists that such 
assistance would aid in substantiating the claims.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In connection with 
the current appeal, VA has of record service medical records, 
reports of VA examinations, and VA medical records of 
treatment.  There is no indication that any other treatment 
records exist that should be requested, or that any pertinent 
evidence has not been received.  A VA examination was 
provided in connection with the claim.  The veteran was 
provided an opportunity to testify at a hearing before the RO 
hearing officer in May 2005.

For the forgoing reasons, the Board finds that VA has 
satisfied its duty to notify and the duty to assist pursuant 
to the VCAA.  See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); 
Pelegrini, supra; Quartuccio, supra; Dingess, supra.  Any 
error in the sequence of events or the content of the notice 
is not shown to have any effect on the case or to cause 
injury to the claimant.  Thus, any such error is harmless and 
does not prohibit consideration of these matters on the 
merits.  See Dingess, supra; see also ATD Corp. v. Lydall, 
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

The veteran is claiming entitlement to higher disability 
ratings than currently in effect for his bilateral hearing 
loss and his tinnitus.  Disability evaluations are determined 
by comparing present symptomatology with the criteria set 
forth in VA's Schedule for Rating Disabilities, which is 
based on average impairment in earning capacity.  See 38 
U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007).  When a 
question arises as to which of two ratings apply under a 
particular diagnostic code, the higher evaluation is assigned 
if the disability more closely approximates the criteria for 
the higher rating; otherwise, the lower rating will be 
assigned.  38 C.F.R. § 4.7.  After careful consideration of 
the evidence, any reasonable doubt remaining is resolved in 
favor of the veteran.  38 C.F.R. § 4.3.

The veteran's entire history is reviewed when making 
disability evaluations. 
38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 
(1995).  In evaluating the veteran's claims, all regulations 
which are potentially applicable through assertions and 
issues raised in the record have been considered, as required 
by Schafrath.  

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).  However, where an 
increase in the level of a service-connected disability is at 
issue, the primary concern is the present level of 
disability.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

The Board acknowledges, however, that a claimant may 
experience multiple distinct degrees of disability that might 
result in different levels of compensation from the time the 
increased rating claim was filed until a final decision is 
made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus in 
deciding the claim below, the Board has considered whether 
different ratings may be warranted for different time periods 
based on the evidence of record.  

VA regulations also require that disability evaluations be 
based upon the most complete evaluation of the condition that 
can be feasibly constructed with interpretation of 
examination reports, in light of the whole history, so as to 
reflect all elements of disability.  The medical as well as 
industrial history is to be considered, and a full 
description of the effects of the disability upon ordinary 
activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

If the evidence for and against a claim is in equipoise, the 
claim will be granted. A claim will be denied only if the 
preponderance of the evidence is against the claim. See 38 
U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 
1 Vet. App. 49, 56 (1990).

The Board has considered all of the evidence material to the 
veteran's claims, which  includes private and VA medical 
records including the report of a January 2005 VA 
audiological examination; a statement from the veteran's 
wife; and the transcript of a hearing before a hearing 
officer at the RO in May 2005. 





A.  Bilateral Hearing Loss

The Court has held that the assignment of disability ratings 
for hearing impairment are to be derived by the mechanical 
application of the Rating Schedule to the numeric 
designations assigned after audiometry evaluations are 
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

In cases in which the evaluation of hearing loss is at issue, 
an examination for VA purposes must be conducted by a state-
licensed audiologist and must include a controlled speech 
discrimination test (Maryland CNC) and a pure tone audiometry 
test.  Examinations will be conducted without the use of 
hearing aids.  38 C.F.R. 
§ 4.85(a).

The horizontal lines in Table VI (in 38 C.F.R. § 4.85) 
represent eleven categories of the percentage of 
discrimination based on the controlled speech discrimination 
test. The vertical columns in Table VI represent eleven 
categories of decibel loss based on the pure tone audiometry 
test. The numerical designation of impaired efficiency (I 
through XI) will be determined for each ear by intersecting 
the horizontal row appropriate for the percentage of 
discrimination and the vertical column appropriate to 
puretone decibel loss.  For example, with the percentage of 
discrimination of 70 and an average pure tone decibel loss of 
64, the numeric designation level is "V" for one ear.  The 
same procedure will be followed for the other ear. 38 C.F.R. 
§ 4.85(b).

The percentage evaluation will be found from Table VII (in 38 
C.F.R. § 4.85) by intersecting the horizontal row appropriate 
for the numeric designation for the ear having the better 
hearing and the vertical column appropriate to the numeric 
designation level for the ear having the poorer hearing.  For 
example, if the better ear has a numeric designation level of 
"V," and the poorer ear has a numeric designation level of 
"VII," the percentage evaluation is 30 percent.  38 C.F.R. 
§ 4.85(e), Diagnostic Code 6100.

Specific provisions are in effect for "unusual patterns of 
hearing impairment," specifically cases where the pure tone 
thresholds at each of the four specified frequencies (1000, 
2000, 3000, and 4000 Hertz) are 55 decibels or more, or where 
the pure tone thresholds are 30 decibels or less at 1000 
Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 
4.86.  As neither fact pattern has been shown in this case, 
these provisions are inapplicable here.

As pertinent to the current claim on appeal, the veteran 
underwent a VA audiological evaluation in January 2005.  The 
report of that evaluation shows that the pure tone hearing 
threshold levels at 1000, 2000, 3000, and 4000 hertz were 
respectively, 25, 40, 50, and 50 on the right; and 30, 45, 
50, and 50 on the left.  The results of that examination 
revealed an average puretone threshold hearing level of 41 dB 
for the right ear, and 44 dB for the left ear.  Speech 
audiometry revealed speech recognition ability of 92 percent 
on the right and 94 percent on the left.  

Application of the January 2005 average puretone threshold 
and speech recognition ability scores to Table VI (in 38 
C.F.R. § 4.85) results in Roman Numeral designations of I for 
the right ear and I for the left ear.  This combination, when 
applied to Table VII (in 38 C.F.R. § 4.85) results in a zero 
percent evaluation for hearing impairment under Diagnostic 
Code 6100.  

Based on the foregoing, the Board finds that a compensable 
evaluation (in excess of zero percent) is not warranted.  
There is no medical evidence showing that the veteran meets 
the diagnostic criteria for a disability rating in excess of 
zero percent.  

As reflected in the May 2005 hearing transcript, the veteran 
argues that his bilateral hearing loss disability is more 
severely disabling than the current evaluation reflects.  The 
veteran's lay assertions of decreased hearing, however, are 
insufficient to establish entitlement to a higher evaluation 
for hearing loss because "disability ratings for hearing 
impairment are derived by a mechanical application of the 
rating schedule to the numeric designations assigned after 
audiometric evaluations are rendered." Lendenmann v. 
Principi, 3 Vet. App. 345, 349 (1992).  The veteran is free 
to submit evidence at a future date in furtherance of the 
assignment of a higher evaluation, such as recent 
audiological testing reports.

In the present case, however, the "mechanical application" of 
the applicable diagnostic criteria to the evidence at hand 
clearly warrants only a noncompensable evaluation.  As such, 
the preponderance of the evidence is against the veteran's 
claim of entitlement to a compensable evaluation for 
bilateral hearing loss.

The Board acknowledges that in reaching it's determination in 
this decision, VA is statutorily required to resolve the 
benefit of the doubt in favor of the veteran when there is an 
approximate balance of positive and negative evidence 
regarding the merits of an outstanding issue.  That doctrine, 
however, is not applicable in this case because the 
preponderance of the evidence is against the veteran's claim.  
See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 
U.S.C.A. § 5107(b).

B.  Tinnitus

In a June 2005 rating decision, the RO continued a 10 percent 
disability rating for the veteran's service-connected 
tinnitus.  The veteran appealed from that decision, claiming 
a separate compensable evaluation for each ear for the 
veteran's service-connected tinnitus.  That is, he claimed a 
10 percent rating for the left ear tinnitus, and a 10 percent 
rating for the right ear tinnitus.  As explained in the April 
2005 statement of the case, the RO decided that separate 
compensable evaluations for each ear for tinnitus was not 
warranted.  The RO denied the claim on the basis that 
Diagnostic Code 6260 only allows for a maximum single 10 
percent evaluation for recurrent tinnitus, and that there is 
no provision for assignment of a separate 10 percent 
evaluation for each ear for tinnitus.    

In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. 
Court of Appeals for Veterans Claims (CAVC) held that the 
pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 
6260 required the assignment of dual ratings for bilateral 
tinnitus.  VA appealed this decision to the U.S. Court of 
Appeals for the Federal Circuit (Federal Circuit) and stayed 
the adjudication of tinnitus rating cases affected by the 
Smith decision.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. 
Cir. 2006), the Federal Circuit concluded that the CAVC erred 
in not deferring to the VA's interpretation of its own 
regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, 
which limits a veteran to a single schedular disability 
rating for tinnitus, regardless whether the tinnitus is 
unilateral or bilateral.  Subsequently, the stay of 
adjudication of tinnitus rating cases was lifted.  

The veteran's service-connected tinnitus has been assigned 
the maximum schedular rating available for tinnitus of one or 
both ears.  38 C.F.R. §4.87, Diagnostic Code 6260.  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 (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 are dispositive in a 
matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 
(2002). 


ORDER


Entitlement to a compensable schedular rating for bilateral 
hearing loss is denied.

The claim of entitlement to separate schedular 10 percent 
disability ratings for tinnitus in each ear is denied. 



____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs