Citation Nr: 0810720 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 06-33 418 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE 1. Entitlement to an increase in a 10 percent rating for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from March 1943 to August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 RO rating decision that denied an increase in a 10 percent rating for bilateral hearing loss. In January 2008, the veteran testified at a Travel Board hearing at the RO. FINDINGS OF FACT 1. The veteran's service-connected bilateral hearing loss is manifested by auditory acuity Level XI in the right ear and auditory acuity Level I in the left ear. 2. The veteran's current tinnitus is the result of exposure to acoustic trauma during his active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R §§ 4.85, 4.86, Diagnostic Code 6100 (2007). 2. Tinnitus was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence the VA will attempt to obtain. Also, a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. Recently, the United States Court of Appeals for Veterans Claims (Court) held in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), that for a claim 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. Id. Further, under Vazquez, 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, slip op. at 5-6. In this case, in November 2004 and February 2006 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in his possession that pertains to the claims. A March 2006 letter also advised the veteran of how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. The case was last readjudicated in October 2006. Additionally, the Board finds it pertinent that in a January 2008 statement, the veteran specifically reported that there was more to the negative effects from his bilateral hearing loss than the combined rating schedule. The January 2008 statement, with the reference to the requirements of the combined rating schedule, shows that the veteran had actual knowledge of the criteria that must be met for a higher rating to be awarded. Further, at the January 2008 Board hearing, the veteran specifically testified as to the effect of his bilateral hearing loss on his previous employment and his daily life. Therefore, a remand for additional notification regarding criteria with which the veteran is already quite familiar would serve no useful purpose. Also, the Board finds that as to the issue of entitlement to service connection for tinnitus, VA has substantially satisfied the duties to notify and assist as required by 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005) and 38 C.F.R. § 3.159 (2007). To the extent there may be any deficiency of notice or assistance as to this issue, there is no prejudice to the veteran in proceeding given the favorable nature of the Board's decision. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include the following: the veteran's service medical records; post- service private and VA treatment records; VA examination reports; lay statements; and hearing testimony. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes the following: his contentions; service medical records; post-service private and VA treatment records; VA examination reports; lay statements; and hearing testimony. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). A recent decision of the Court has held that in determining the present level of disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 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. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345(1992). Evaluations of bilateral defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85. A regulation, 38 C.F.R. § 4.86, also provides an alternative method for rating exceptional patterns of hearing impairment. Such regulation provides: (a) When the pure tone 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. (b) When the pure tone 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. VA treatment records dated from June 2004 to September 2004 show treatment for bilateral hearing loss. A June 2004 VA audiological treatment report indicated that the veteran reported that he had decreased hearing in both ears, worse in his right ear, since 1946. It was noted that the veteran had noise exposure during the military. The veteran stated that he had constant tinnitus. The assessment was moderate to profound sensorineural hearing loss in the right ear and normal hearing through 1500 Hertz, sloping to a mild to profound sensorineural hearing loss, in the left ear. It was noted that speech recognition was good in the veteran's left ear and unmeasurable in the right ear. A June 2004 VA audiological evaluation report noted that pure tone thresholds in the veteran's right ear were 110, 115+, 115+, and 115+ decibels at 1000, 2000, 3000, and 4000 Hertz. Pure tone thresholds in the veteran's left ear were 20, 35, 60, and 70 decibels at the same frequencies. The Board notes that the June 2004 VA audiological report provided some relevant data required by the VA, but the results were incomplete for VA purposes. Specifically, there was no indication that the Maryland CNC Test was used as required by 38 C.F.R. § 4.85(a). VA treatment entries dated in July 2004, August 2004, and September 2004 referred to additional treatment. A December 2004 lay statement from the veteran's wife indicated that the veteran's hearing had continued to deteriorate. She stated that he could not hear anything she would say at home unless they were in the same room and she spoke very loudly. A lay statement from two individuals who reside with the veteran indicated that his hearing had been steadily deteriorating. They reported that, as the veteran resided in their home, they had direct and continual observation of his impairment. It was noted that the veteran's directional loss was most notable and that he could not locate the handset phone when it would ring or locate other sounds. A December 2004 VA audiological examination report noted that pure tone thresholds in the veteran's right ear were 105, 105, 105, and 105 decibels at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold in the veteran's right ear was 105 decibels and the speech recognition ability, using the Maryland CNC Test, was 0 percent. Pure tone thresholds in the veteran's left ear were 25, 35, 60, and 70 decibels at the same frequencies. The average pure tone threshold in the veteran's left ear was 48 decibels and the speech recognition ability, using the Maryland CNC Test, was 92 percent. The diagnoses were severe to profound sensorineural hearing loss in the veteran's right ear and mild to severe high frequency sensorineural hearing loss in his left ear. The examiner stated that no tinnitus was reported. VA treatment records dated in September 2005 referred to treatment for disorders including hearing loss. The most recent March 2006 VA audiological examination report indicated that pure tone thresholds in the veteran's right ear were 105, 105, 105, and 105 decibels at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold in the veteran's right ear was 105 decibels and the speech recognition ability, using the Maryland CNC Test, was 0 percent. Pure tone thresholds in the veteran's left ear were 25, 35, 60, and 75 decibels at the same frequencies. The average pure tone threshold in the veteran's left ear was 49 decibels and the speech recognition ability, using the Maryland CNC Test, was 100 percent. The diagnoses were severe to profound sensorineural hearing loss in the veteran's right ear and normal to severe sensorineural hearing loss in his left ear. The examiner commented that there was no tinnitus. At the January 2008 Board hearing, the veteran testified that he wore hearing aids. He also indicated that he had ringing in his ears. He stated that they did not ask if he had ringing in his ears during the examination that he underwent in 2006. The veteran indicated that he had suffered from ringing in the ears since service and that such was due to the acoustic trauma he suffered from a concussion from gunfire. The veteran also discussed how his hearing difficulties had affected his activities such as having to get away from turkey hunting and not being able to drive alone. He reported that he had more trouble hearing female voices because they were at a higher pitch. He indicated that he retired in 1980 and that he had trouble hearing conversations before he retired. The veteran's wife also testified as to his hearing difficulties. The Board notes that the June 2004 VA audiological report did not provide sufficient detail for rating purposes in accordance with the criteria of 38 C.F.R. § 4.85. The Board observes that the December 2004 VA audiological examination report rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level XI in the right ear and auditory acuity Level I in the left ear under Table VI of 38 C.F.R. § 4.85. The Board notes, however, that the right ear findings do qualify for consideration under Table V1a of 38 C.F.R. § 4.86(a). Using that section, the veteran's hearing level in his right ear translates to auditory acuity Level XI. This is the same result as that under Table VI. Using Table VII of the rating schedule provisions on hearing loss, and entering Level XI for the right ear and Level I for the left ear, results in a 10 percent rating for bilateral hearing loss under Diagnostic Code 6100. Additionally, the March 2006 VA audiological examination report rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level XI in the right ear and auditory acuity Level I in the left ear under Table VI of 38 C.F.R. § 4.85. The Board observes that the right ear findings again qualify for consideration under Table V1a of 38 C.F.R. § 4.86 (a). Using that section, the veteran's hearing level in his right ear translates to auditory acuity Level XI. This is the same result as that under Table VI. Using Table VII of the rating schedule provisions on hearing loss, and entering Level XI for the right ear and Level I for the left ear, results in a 10 percent rating for bilateral hearing loss under Diagnostic Code 6100. Based on the reports during the period of the appeal, none of the veteran's hearing tests support findings that would warrant more than the assigned 10 percent rating. The Board is sympathetic to the veteran's contentions regarding the severity of his service-connected bilateral hearing loss. However, applying the rating criteria to the audiological test results does not warrant a rating higher than 10 percent. The use of hearing aids does not affect the veteran's rating, as hearing tests are conducted without hearing aids. 38 C.F.R. § 4.85(a). In reaching this decision, the Board has considered the issue of whether the veteran's service-connected hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2005); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In this regard, the veteran is currently retired. Although he has indicated that his hearing loss has affected his employment, there is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for hearing loss. Marked interference with employment has not been shown at this time, nor has he been hospitalized for the disorder. Therefore, the Board finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) for hearing loss are not met. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 U.S.C.A. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the issue of entitlement to service connection for tinnitus is not specifically on appeal. At the January 2008 Board hearing, however, the veteran indicated that he had suffered from tinnitus since service. Additionally, the Board observes that it is known that tinnitus is often considered to have a common etiology with, or to be secondary to, sensorineural hearing loss. See 2 Cecil, Textbook of Medicine, § 464 at 2119-2120 (18th ed. 1988). The veteran's bilateral hearing loss, which is service-connected, clearly has a sensorineural component. For the purposes of this decision, the Board interprets the veteran's claim for entitlement to an increase in a 10 percent for bilaterally hearing loss to also include a claim for service connection for tinnitus as his currently claimed tinnitus has an affect on his hearing loss. The veteran's service medical records show that he was exposed to a blast concussion during service and that he suffered unilateral deafness in his right ear. An August 1946 board of medical survey report noted that the veteran suffered tinnitus after being knocked down by a blast concussion from a 3-inch guy. The diagnoses included deafness, unilateral. Post-service private and VA treatment records show treatment for hearing loss and for tinnitus on multiple occasions. For example, a September 1957 VA audiological examination report noted that the veteran had tinnitus. A May 1958 VA audiological examination report indicated that during service, the veteran walked under a 3-inch 50 mm gun when it was fired and was almost completely deaf for a period of three to four days. It was reported that he had associated tinnitus which remained for an unknown period of time and would still recur periodically as a high pitched, almost pure tone. A June 2004 VA treatment entry noted that the veteran reported that he had constant tinnitus in both ears. VA audiological examination reports dated in December 2004 and March 2006 indicated that no tinnitus was reported. At the January 2008 Board hearing, the veteran testified that he had ringing in the ears during service and that it had continued since that time. Tinnitus has been defined by the Court as a ringing, buzzing noise in the ears. See YT v Brown, 9 Vet. App. 195, 196 (1996); Kelly v. Brown, 7 Vet. App. 471 (1995) (citing Dorland's Illustrated Medical Dictionary 1725 (27th ed. 1988)). Due to the subjective nature of the disorder, the veteran, as a layperson is competent to testify as to his symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Accordingly, the Board concludes that the veteran's statements that he experienced tinnitus since service are competent to establish continuity of symptomatology, as he is also competent to testify that the ringing in his ears started during service (as is shown in service medical records), and has continued since then. See Savage v Gober, 10 Vet. App. 488, 495-98 (1997). In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In addition, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the veteran prevails." Thus, the Board finds that the service connection is warranted for tinnitus. ORDER An increased rating for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs