Citation Nr: 0810814 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-41 598 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating from February 5, 2004 to June 14, 2006, and an initial rating in excess of 10 percent from June 15, 2006, for the service- connected bilateral hearing loss. 2. Entitlement to an effective date earlier than December 9, 2005, for the grant of service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran had active military service from August 1964 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the RO that granted service connection for hearing loss and evaluated the condition as noncompensable effective on February 5, 2004. In June 2006, the RO also granted service connection for tinnitus and evaluated that condition as 10 percent disabling effective on December 9, 2005. The veteran perfected timely appeals of these matters, challenging the rating for his hearing loss and challenging the effective date for the grant of service connection for tinnitus. In November 2006, the RO increased the evaluation of the veteran's hearing loss to 10 percent disabling effective on June 15, 2006. Because the veteran's increased rating claim involves the propriety of the initial evaluation assigned, the Board has characterized the claim as indicated on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this regard, the Board notes that because the assigned evaluation does not represent the maximum rating available for this disability, the veteran's claim challenging the initial evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. For the period prior to June 15, 2006, the certified VA audiometric test results showed that the veteran had a no more than level II hearing acuity in the right ear and a no more than level IV hearing acuity on the left. 2. Beginning with the June 15, 2006 VA audiometric testing, the veteran's certified results initially revealed a disability picture that more nearly approximated that of Level V hearing acuity in the left ear, along with level II hearing on the right. 3. The veteran is not shown to have evidenced his intent to file a claim of service connection for tinnitus earlier than document received on December 9, 2005. CONCLUSIONS OF LAW 1. The schedular criteria for the assignment of an initial compensable rating for the service-connected bilateral hearing loss, for the period beginning on February 5, 2004 through June 14, 2006 or a rating in excess of 10 percent beginning on June 15, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.2, 4.7, 4.10, 4.85, 4.86(a), including Diagnostic Code 6100 (2007). 2. An effective date earlier than December 9, 2005, the date of claim, for the grant of service connection for tinnitus, is not assignable by law. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155(a), 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. With respect to his earlier effective date claim, the Board notes that the Court recently held that VA's duties to notify and assist contained in VCAA are not applicable to cases in which the law, rather than the evidence, is dispositive. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). With respect to the veteran's hearing loss claim, the Board notes that in letters dated in February 2004, and March and May 2006, the RO provided the veteran with the required notice under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b) with respect to his claim. The veteran was also generally invited to send information or evidence to VA that may support his claim, was advised of the basic law and regulations governing his claim, the basis for the decisions regarding his claim, and the cumulative information and evidence previously provided to VA, or obtained by VA on the veteran's behalf. In this regard, the Board also notes that in Dingess v. Nicholson, the Court recently held that upon receipt of an application for service connection, VA is required to notify a claimant of what information and evidence will substantiate the elements of the claim for service connection, including that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, however, the Court also declared, that "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Id. at 491. As such, no further VCAA notice is required with respect to the veteran's claim for initial higher disability rating for hearing loss; and under the circumstances, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). For these reasons, the Board finds that the RO substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). The Board also finds that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service records, post-service medical and treatment records, VA examinations, and statements submitted by the veteran and his representative in support of the claim. Under the circumstances of this case, the Board finds that VA undertook reasonable development with respect to the veteran's claim and concludes that there is no identified evidence that has been considered. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Increase rating for hearing loss. The present appeal involves the veteran's claim that the severity of his service-connected bilateral hearing loss warrants a higher disability rating. 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 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 also acknowledges 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). In addition, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. Brown, 12 Vet. App. at 126. In this case, the service-connected bilateral hearing loss is rated as noncompensable from February 5, 2004 to June 14, 2006, and 10 percent disabling from June 15, 2006, under Diagnostic Code 6100 of the Rating Schedule. Under this Code, defective hearing evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (hertz). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. 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 (1992). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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. Also for cases where the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, that numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86(a), (b). The medical evidence in this case includes VA audiological evaluations dated in July 2004, June 2005 and June 2006. The July 2004 VA audiology examination revealed pure tone threshold levels, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 50 55 45 LEFT 60 55 60 60 Speech audiometry, when indicated, revealed speech recognition ability of 90 percent in the right ear and 90 percent on the left. The June 2005 VA audiology examination revealed pure tone threshold levels, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 45 50 50 LEFT 55 55 60 65 Speech audiometry, when indicated, revealed speech recognition ability of 94 percent in the right ear and 92 percent on the left. The June 2006 VA audiology examination revealed pure tone threshold levels, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 60 50 LEFT 60 60 65 65 Speech audiometry, when indicated, revealed speech recognition ability of 92 percent in the right ear and 92 percent on the left. Based on these certified results from VA, the Board finds that, in July 2004, the veteran is shown to have had level II hearing acuity (using Table VI) in the right ear and level IV hearing acuity (using Table VIA for an exceptional pattern of hearing loss) in the left . In June 2005, the VA audiological tests revealed findings of level I hearing acuity in his right ear (Table VI) and level IV hearing acuity in his left (using Table VIA). Finally, in June 2006, the VA audiological tests revealed level II hearing acuity (Table VI) in his right ear and findings on the left that more closely resembled that of level V hearing acuity (62.5 puretone threshold average applied Table VIA). These calculated results when applied to Table VII in turn show that a noncompensable evaluation was for application for the period prior to the testing conducted in June 2006. The most recent testing in June 2006 for the first time yielded calculated results that supported the assignment of a 10 percent rating when applied to Table VII. Accordingly, under the applicable regulations, a higher evaluation for the service-connected bilateral hearing loss is not assignable for either period in question in this case. The Board has carefully considered the veteran's contentions in this matter. The Rating Schedule, however, provides the criteria for rating hearing loss. Applying the veteran's recent audiometric results to Table VI, VIa, and VII of 38 C.F.R. §§ 4.85, 4.86, results in a noncompensable rating for his service-connected bilateral hearing loss before June 2006. A higher evaluation for his service-connected hearing loss is therefore not warranted. We appreciate the veteran's concern that he is unable to hear softly spoken conversation, but no specific compensation is provided based upon such inability. Finally, the record does not establish that the schedular criteria are inadequate to evaluate the veteran's disability so as to warrant assignment of a higher evaluation on an extraschedular basis. In this regard, the Board notes that there is no showing that the veteran's service-connected disability has resulted in marked interference with employment. In addition, there is no showing that the disability has necessitated frequent periods of hospitalization, or that it has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board finds that the 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, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Earlier Effective Date for tinnitus. The effective date for a grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service. If the claim is not received within one year of separation from service, the effective date for a grant of service connection is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). In this case, the evidence shows that the veteran filed a statement at the RO on December 9, 2005 stating "my [t]innitus is service connected." The RO took this to be a claim of service connection and, after developing the claim, granted service connection for tinnitus in June 2006, effective December 9, 2005. Here, the Board notes that the veteran was awarded service connection for tinnitus effective on December 9, 2005, which is the date of receipt of his claim. Based on 38 U.S.C.A. § 5110(a), therefore, the RO assigned the earliest effective date for the grant of service connection for tinnitus that the law allows. 38 C.F.R. § 3.400. In statements submitted to VA, the veteran now contends that he should be awarded an effective date of February 5, 2004, the effective date of his award of service connection for hearing loss. He essentially asserts that his hearing loss and his tinnitus were both connected to his service and both should receive the same effective date. In this regard, the Board notes that any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(a). And "[t]he mere presence of the medical evidence [in the record] does not establish an intent on the part of the veteran" to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The mere receipt of medical records cannot be construed as an informal claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Board finds in this regard that the veteran's claims file does not contain a communication indicating an intent to seek service connection for tinnitus prior to December 9, 2005. The Board notes that, on November 10, 2005, the RO received a submission from the veteran indicating that he disagreed with statements recorded for clinical purposes on VA examination on a print regarding his tinnitus. The veteran indicated that he had a tone or ringing to which he had become accustomed over the last 30 some years. This statement on its face cannot be viewed as evidence of an intent to file a claim of service connection for tinnitus. In addition, the veteran submitted another statement that was received at the RO on November 23, 2005. This statement is similar to the earlier one in that disputes information recorded in connection with a VA examination. Specifically, the veteran indicated that he never said his tinnitus started a few years ago and occurred once a month. Rather, the veteran indicated that his tinnitus had been on going since service. In the context of the veteran's other comments in these documents, these references to tinnitus cannot amount to more than another expression of his general dissatisfaction with the VA examination process. Without more, there is nothing in either document to establish his intent to file a claim of service connection for tinnitus. None of the other rambling statements in the record can reasonably be construed as a claim earlier than December 9, 2005 statement. Accordingly, the Board finds that the evidentiary record does not contain a communication indicating an intent to file a claim of service connection for tinnitus prior to December 9, 2005. For the foregoing reasons, the claim for an earlier effective date for the grant of service connection for tinnitus hearing loss in denied. ORDER An initial compensable evaluation for the service-connected bilateral hearing loss for the period from February 5, 2004 through June 14, 2006, or an initial rating in excess of 10 percent beginning on June 15, 2006 is denied. The claim for an effective date earlier than December 9, 2005, for the grant of service connection for tinnitus is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs