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