Citation Nr: 0814377	
Decision Date: 05/01/08    Archive Date: 05/12/08

DOCKET NO.  06-03 967	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux 
Falls, South Dakota


THE ISSUES

1.  Entitlement to an increased rating from an original grant 
of service connection for hearing loss, rated as 90 percent 
disabling. 

2.  Entitlement to a total disability rating based on 
individual unemployability (TDIU) due to service-connected 
disabilities.  

3.  Entitlement to an effective date earlier than April 26, 
2006, for the award of service connected disability 
compensation on account of bilateral hearing loss.

4.  Entitlement to an effective date earlier than April 26, 
2006, for the award of service connected disability 
compensation on account of tinnitus.


REPRESENTATION

Appellant represented by:	James R. Davies, Attorney


ATTORNEY FOR THE BOARD

S.M. Cieplak, Counsel


INTRODUCTION

The veteran served on active duty from January 1952 to 
October 1953.

This appeal comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, 
South Dakota.   

Although the veteran had requested a personal hearing before 
a Veterans Law Judge, Board of Veterans' Appeals, he withdrew 
that request in a writing received in February 2006.  
Accordingly, the claims may be adjudicated.


FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate the claim on appeal has been accomplished. 

2.  Bilateral hearing loss is manifested by level XI hearing 
acuity in the right ear and level X hearing acuity in the 
left ear.

3.  The persuasive evidence of record does not demonstrate 
the veteran to be unemployable as a result of his service- 
connected disabilities.

4.  The veteran's only claim for service connection for a 
bilateral hearing loss was received on April 26, 2004.

5.  The veteran's only claim for service connection for 
tinnitus was received on April 26, 2004.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 90 percent for 
bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 
5107(a) (West 2002); 38 C.F.R. §§ 3.321, 4.85, Diagnostic 
Code 6100 (2007).

2.  The veteran's service-connected disabilities do not 
render him individually unemployable.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2007).

3.  The criteria for an effective date earlier than April 26, 
2004, for the grant of service connection for bilateral 
hearing loss have not been met.  38 U.S.C.A. § 5110 (West 
2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007).

4.  The criteria for an effective date earlier than April 26, 
2004, for the grant of service connection for tinnitus have 
not been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 
38 C.F.R. § 3.400 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court) have been fulfilled 
by information provided to the veteran in letters from the RO 
dated in May 2004, October 2004 and March 2006.  Those 
letters notified the veteran of VA's responsibilities in 
obtaining information to assist the veteran in completing his 
claim, identified the veteran's duties in obtaining 
information and evidence to substantiate his claim, and 
requested that the veteran send in any evidence in his 
possession that would support his claim.  (See 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 
16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 
112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 
103, 110 (2005), reversed on other grounds, 444 F.3d 1328 
(Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 
537 (2006).

The Board acknowledges a recent decision from the Court that 
provided additional guidance of the content of the notice 
that is required to be provided under 38 U.S.C.A. § 5103(a) 
and 38  C.F.R. § 3.159(b) in claims involving increased 
compensation benefits.  See Vazquez-Flores v. Peake, 22 Vet. 
App. 37 (2008).  In that decision, the Court stated that for 
an increased compensation claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that the VA notify the claimant that, 
to substantiate a claim, the claimant must provide, or ask 
the 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.  Further, if the Diagnostic Code under which the 
claimant is rated contains criteria necessary for entitlement 
to a higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or increase 
in severity of the disability and the effect of that 
worsening has on the claimant's employment and daily life 
(such as a specific measurement or test result), the VA must 
provide at least general notice of that requirement to the 
claimant.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).

While the veteran was clearly not provided this more detailed 
notice, the Board finds that the veteran is not prejudiced by 
this omission in the adjudication of his increased rating 
claim.  In this regard, during the course of this appeal the 
veteran has been represented at the RO and before the BVA by 
an attorney and the Board presumes that the veteran's 
representative has a comprehensive knowledge of VA laws and 
regulations, including particularly in this case, those 
contained in Part 4, the Schedule for Rating Disabilities, 
contained in Title 38 of the Code of Federal Regulations.  

In addition, the veteran and his representative were provided 
copies of the Statement of the Case issued by the RO in 
December 2005.  That document contained a list of all 
evidence considered, a summary of adjudicative actions, as 
well as all pertinent laws and regulation, including the 
criteria for evaluation of the veteran's disability, and an 
explanation for the decision reached.  In the Board's 
opinion, the veteran and his representative have been 
provided with information that provided them actual knowledge 
of the law and regulations would have been included in the 
more detailed notice contemplated by the Court in the 
Vazquez-Flores case.  Moreover, this appeal arises from 
disagreement with the initial evaluation following the grant 
of service connection for bilateral hearing loss.  The Courts 
have held that once service connection is granted the claim 
is substantiated, additional notice is not required, and any 
defect in the notice is not prejudicial.  Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. 
Nicholson, 21 Vet. App. 112 (2007).

The veteran has been made aware of the information and 
evidence necessary to substantiate his claim and has been 
provided opportunities to submit such evidence.  The RO has 
properly processed the appeal following the issuance of the 
required notice.  Moreover, all pertinent development has 
been undertaken, examinations have been performed, and all 
available evidence has been obtained in this case.  In June 
2006, the veteran's representative indicated that he was 
awaiting personnel records from the NPRC, which he planned to 
forwarded to the RO.  However, to date no such submission has 
been received and associated with the claims file.  The 
appellant has not identified how such personnel records could 
support the pending claims or any additional evidence that 
could be obtained to substantiate the claims.  Thus, the 
content of the VCAA letters complied with the requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  No further 
action is necessary for compliance with the VCAA. 

Factual Background

Service entrance examination was negative for hearing loss; 
however, the veteran's separation examination of October 1953 
reflected normal hearing on objective testing but, 
notwithstanding, also documented the presence of tinnitus and 
a slight hearing loss.  

The veteran filed his initial claim for entitlement to 
service connection for tinnitus and bilateral hearing loss on 
April 26, 2004, more than fifty years after separation.  

The veteran was afforded a VA audiometric examination in July 
2004.  He reported having had hearing problems for the 
previous 35-40 years and having received his first set of 
hearing aids in the 1970's.  Pure tone results were:




HERTZ




500
1000
2000
3000
4000
AVG.
RIGHT
30
75
105
105
105
98
LEFT
30
65
105
105
105
95

Speech recognition in the right ear was 30 percent and at 36 
for the left ear.   

The veteran was afforded a VA hearing examination in October 
2004.  The examiner referred to the July 2004 VA audiometric 
examination noting that the veteran had profound hearing loss 
and poor speech discrimination.  The results from the July 
2004 were considered to represent true organic hearing 
acuity.  The veteran related that after service, he worked 
doing auto and light truck mechanics and worked in a machine 
shop for 40+ years.  He did not indicate that he retired due 
to hearing loss as much as due to age.  Although he has a 
significant hearing loss, he was able to work, gaining more 
occupational noise exposure.  It was the audiologist's 
opinion that although the impaired hearing would limit 
employment opportunities, he would still be able to find as 
much gainful employment as others his age.  He could do 
paperwork.  Therefore, the examiner concluded that his 
service connected conditions, hearing loss and tinnitus, did 
not preclude substantial gainful employment.  

Private treatment records for the period from January 1980 to 
September 2004 were received in July 2005 and reflect 
treatment for a variety of medical disorders including heart 
disease inter alia and also mention hearing problems. 

VA outpatient treatment records through August 2005 include 
an April 2005 consultation, which reported that the veteran 
did quite well in a quiet environment but had trouble in 
noisy settings.  Cochlear implants were also discussed.  
Thereafter, an August 2005 statement from a VA staff 
physician indicated that although he was not an audiologist, 
the veteran's hearing loss was not as severe as others he had 
seen for cochlear ear implants.  

Law and Regulations - Increased Rating

Disability ratings are rendered upon the VA's Schedule for 
Rating Disabilities as set forth at 38 C.F.R. Part 4.  The 
percentage ratings represent as far as can practicably be 
determined the average impairment in earning capacity in 
civil occupations.  The disability must be viewed in relation 
to its history.  38 C.F.R. § 4.1.  The higher evaluation 
shall be assigned where the disability picture more nearly 
approximates the criteria for the next higher evaluation.  38 
C.F.R. § 4.7.  While lost time from work related to a 
disability may enter into the evaluation, the rating schedule 
is "considered adequate to compensate for considerable loss 
of working time from exacerbations proportionate" with the 
severity of the disability.  38 C.F.R. § 4.1. 

The United States Court of Appeals for Veterans Claims 
(hereinafter, "Court") has held that, in a claim of 
disagreement with the initial rating assigned following a 
grant of service connection, separate ratings can be assigned 
for separate periods of time, based on the facts found.  
Fenderson v. West, 12 Vet. App. 119 (1999).  In this case, it 
is neither asserted and the record does not suggest that the 
veteran's disability has increased in severity.

In adjudicating the increased rating claim, the Board 
determines whether (1) the weight of the evidence supports 
the claim, or (2) the weight of the "positive" evidence in 
favor of the claim is in relative balance with the weight of 
the "negative" evidence against the claim: the appellant 
prevails in either event.  However, if the weight of the 
evidence is against the appellant's claim, the claim must be 
denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;  Gilbert 
v. Derwinski, 1 Vet. App. 49 (1990). 

VA regulations provide a table for ratings purposes (Table 
VI) to determine a Roman numeral designation (I through XI) 
for hearing impairment, established by a state-licensed 
audiologist including a controlled speech discrimination test 
(Maryland CNC), and based upon a combination of the percent 
of speech discrimination and the puretone threshold average 
which is the sum of the puretone thresholds at 1000, 2000, 
3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85 
(2007).  Table VII is used to determine the percentage 
evaluation by combining the Roman numeral designations for 
hearing impairment of each ear.  Id.

Table VI
Numeric designation of hearing impairment based on puretone 
threshold average and speech discrimination.

% of 
discri
m- 
inatio
n
Puretone Threshold Average

0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV 
84-90
II
II
II
III
III
III
IV
IV
IV 
76-82
III
III
IV
IV
IV
V
V
V
V 
68-74
IV
IV
V
V
VI
VI
VII
VII
VII 
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII 
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX 
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X 
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X 
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI 

Table VIA*
Numeric designation of hearing impairment based only on 
puretone threshold average
Puretone Threshold Average
0-41
42-
48
49-
55
56-
62
63-
69
70-
76
77-
83
84-
90
91-
97
98-
104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
*This table is for use only as specified in §§4.85 and 4.86. 

Table VII
Percentage evaluation for hearing impairment
(Diagnostic Code 6100)

Poorer Ear
Better  
Ear











XI
100










X
90
80









IX
80
70
60








VIII
70
60
50
50







VII
60
60
50
40
40






VI
50
50
40
40
30
30





V
40
40
40
30
30
20
20




IV
30
30
30
20
20
20
10
10



III
20
20
20
20
20
10
10
10
0


II
10
10
10
10
10
10
10
0
0
0

I
10
10
0
0
0
0
0
0
0
0
0 

XI
X
IX
VIII
VII
VI
V
IV
III
II
I
38 C.F.R. §§ 4.85 (2007).

Applying the diagnostic criteria under Table VI to the 
findings on audiological examination in July 2004, the Board 
observes that average puretone threshold average is 98 
decibels in the right ear, along with speech discrimination 
findings of 30 percent and puretone threshold average of 95 
decibels in the left ear, along with speech discrimination 
findings of 36 percent.  Such findings correspond to auditory 
Level XI designation (poorer ear) and auditory Level X 
designation (better ear), respectively.  Such findings 
applied to Table VII support no more than a disability 
evaluation of 90 percent.  

The regulations also provide that in cases of exceptional 
hearing loss, i.e. when the puretone threshold at each of the 
four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 
is 55 decibels or more, the 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.  See 38 
C.F.R. § 4.86(a).  

Applying the exceptional patterns of hearing impairment 
criteria set forth under 38 C.F.R. § 4.86, the criteria set 
forth under subsection (a) are applicable because puretone 
thresholds for the service connected ears at each of the four 
specified frequencies is 55 decibels or more.  Applying the 
July 2004 examination results to those criteria would result 
in Level X (poorer ear) and IX (better ear) designations 
respectively under Table VIa and, therefore, would not be 
more beneficial to the veteran because those designations are 
lower than those arising pursuant to Table VI and, 
consequently, would not support an evaluation in excess of 90 
percent.  

The application of Table VI or VIa (the exceptional patterns 
of hearing impairment criteria under 38 C.F.R. § 4.86(a)) do 
not generate a basis for a compensable rating in excess of 
that already assigned.  See 38 C.F.R. §§ 4.85, 4.87.  

The Board notes that the veteran's opinion as to medical 
matters, no matter how sincere, is without probative value 
because he, as a lay person, is not competent to establish a 
medical diagnosis or draw medical conclusions; such matters 
require medical expertise.  See Grottveit v. Brown, 5 Vet. 
App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 
494-95 (1992).  

After consideration of all of the evidence, the Board finds 
that the preponderance of the evidence is against the claim.  
Because the preponderance of the evidence is against the 
claim, the benefit of the doubt doctrine is not for 
application.  38 U.S.C.A. § 5107 (West 2002); Ortiz v. 
Principi, 274 F.3d 1361 (2001) (the benefit of the doubt rule 
applies only when the positive and negative evidence renders 
a decision "too close to call").    

There is no competent evidence of record which indicates that 
the veteran's hearing loss has caused marked interference 
with employment beyond that which is contemplated under the 
schedular criteria, or that there has been any necessary 
inpatient care.  Thus, there is no basis for consideration of 
an extraschedular evaluation under the provisions of 38 
C.F.R. § 3.321(b)(1).  Shipwash v. Brown, 8 Vet. App. 218, 
227 (1995).  There is nothing in the evidence of record to 
indicate that the application of the regular schedular 
standards is impractical in this case.  See Bagwell v. Brown, 
9 Vet. App. 337, 338-9 (1996). 

TDIU

VA law provides that a total rating for compensation may be 
assigned where the schedular rating is less than total when 
it is found that the disabled person is unable to secure or 
follow a substantially gainful occupation as a result of a 
single service-connected disability ratable at 60 percent or 
more or as a result of two or more disabilities, provided at 
least one disability is ratable at 40 percent or more, and 
there is sufficient additional service-connected disability 
to bring the combined rating to 70 percent or more.  It is 
provided further that the existence or degree of nonservice- 
connected disabilities or previous unemployability status 
will be disregarded where the required percentages for the 
service-connected disability or disabilities are met and in 
the judgment of the rating agency such service-connected 
disabilities render the veteran unemployable.  Marginal 
employment shall not be considered substantially gainful 
employment.  For purposes of this section, marginal 
employment generally shall be deemed to exist when a 
veteran's earned annual income does not exceed the amount 
established by the U.S. Department of Commerce, Bureau of the 
Census, as the poverty threshold for one person.  Marginal 
employment may also be held to exist, on a facts found basis 
(includes but is not limited to employment in a protected 
environment such as a family business or sheltered workshop), 
when earned annual income exceeds the poverty threshold. 
Consideration shall be given in all claims to the nature of 
the employment and the reason for termination.  38 C.F.R. § 
4.16(a) (2007).

It is the established policy of VA that all veterans who are 
unable to secure and follow a substantially gainful 
occupation by reason of service-connected disabilities shall 
be rated totally disabled.  Therefore, in the case of 
veterans who are unemployable by reason of service-connected 
disabilities, but who fail to meet these schedular percentage 
standards, the case should be submitted to the Director, 
Compensation and Pension Service, for extra-schedular 
consideration.  38 C.F.R. § 4.16(b).  The veteran's service- 
connected disabilities, employment history, educational and 
vocational attainment, and all other factors having a bearing 
on the issue must be addressed.  38 C.F.R. § 4.16(b).

Age may not be considered as a factor in evaluating service- 
connected disability; and unemployability, in service- 
connected claims, associated with advancing age or 
intercurrent disability, may not be used as a basis for a 
total disability rating.  38 C.F.R. § 4.19 (2007).

The Court has held that in determining whether the veteran is 
entitled to a total disability rating based upon individual 
unemployability neither his nonservice-connected disabilities 
nor his advancing age may be considered.  Van Hoose v. Brown, 
4 Vet. App. 361 (1993).  The sole fact that a claimant is 
unemployed or has difficulty obtaining employment is not 
enough.  A high rating in itself is a recognition that the 
impairment makes it difficult to obtain and keep employment.  
The question is whether the veteran is capable of performing 
the physical and mental acts required by employment, not 
whether the veteran can find employment.  Id.

Based upon the evidence of record, the Board finds the 
persuasive evidence does not demonstrate the veteran is 
unemployable as a result of his service-connected 
disabilities.  VA records show service connection has been 
established for bilateral hearing loss (90 percent) and 
tinnitus (10 percent).  His combined service-connected 
disability rating is 90 percent.  

The schedular rating criteria for TDIU consideration under 38 
C.F.R. § 4.16(a) are met; however, the persuasive evidence 
shows the veteran's service-connected disabilities alone are 
not so disabling as to render him unemployable. 

According to his application for TDIU that was received in 
August 2004, the veteran has been unemployed since 1996 and 
was 65 years of age that year.  He was the owner and 
machinist at an auto supply company.  He reported completing 
high school.  The October 2004 report of the VA examiner who 
reviewed the veteran's medical and employment history reveals 
that the veteran did not leave his employment because of 
hearing as much as to his age.  The examiner concluded that 
the veteran's service-connected disabilities of bilateral 
hearing loss and tinnitus do not render him unemployable.  
The examiner concluded that the veteran could do paperwork 
and suggested that the veteran would have no problem with a 
sedentary employment status. 

The veteran is shown to have other non service-connected 
physical disabilities (e.g. coronary artery disease with four 
coronary artery by-pass grafts) which may cause significant 
impairment to the veteran.  However, there is no probative 
evidence demonstrating the veteran is unable to perform 
sedentary employment, as opposed to physical employment.  
Therefore, his claim for entitlement to TDIU must be denied.

Law and Regulations-Earlier Effective Dates

VA law provides that the effective date for an award of 
disability compensation based on an original claim for direct 
service connection, if the claim is received within one year 
after separation from service, shall be the day following 
separation from active service or the date entitlement arose; 
otherwise, and for reopened claims, it shall be the date of 
receipt of the claim, or the date entitlement arose, 
whichever is later.  38 U.S.C.A. § 5110(a) (West 2002 & Supp. 
2007); 38 C.F.R. § 3.400 (2007).

The Court has held that the failure to consider evidence 
which may be construed as an earlier application or claim, 
formal or informal, that would have entitled the claimant to 
an earlier effective date is remandable error.  See Lalonde 
v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 
7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 
(1992).  The Court has held, however, that the Board is not 
required to conjure up issues that were not raised by an 
appellant.  See Brannon v. West, 12 Vet. App. 32 (1998).

Under VA laws and regulations, a specific claim in the form 
prescribed by VA must be filed in order for benefits to be 
paid or furnished to any individual under laws administered 
by the VA.  38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2007); 
38 C.F.R. § 3.151(a).  VA regulations also provide that the 
terms claim and application mean a formal or informal 
communication in writing requesting a determination of 
entitlement or evidencing a belief in entitlement, to a 
benefit.  38 C.F.R. § 3.1(p) (2007).  Generally, the date of 
receipt of a claim is the date on which a claim, information, 
or evidence is received by VA. 38 C.F.R. § 3.1(r).

Factual Background and Analysis - Earlier Effective Date

Based upon the evidence of record, the Board finds that the 
veteran initially submitted his service connection claim to 
VA in April 2004.  The veteran claims that the effective date 
for his grant of service connection should be as early as the 
mid 1970's, when he was first given hearing aids.  The 
veteran had approximately 50-plus years following his 
separation from service within which to file a claim for a 
hearing loss and tinnitus.  However, there is no evidence or 
assertion demonstrating that a claim was received by the RO 
prior to April 26, 2004.  VA law provides that the effective 
date for an award of disability compensation based on an 
original claim for direct service connection shall be the 
date of receipt of the claim unless the claim is received 
within one year after separation from service.  See 38 
U.S.C.A. § 5110(a) (West 2002 & Supp. 2007); 38 C.F.R. § 
3.400 (2007).  As the veteran filed his claim over 50 years 
after leaving the service, an effective date earlier than the 
date he submitted his original claim is not warranted.

When all the evidence is assembled VA is then 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 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The Board finds the 
preponderance of the evidence is against the claim.




ORDER

Entitlement to increased evaluation for bilateral hearing 
loss is denied. 

Entitlement to a total disability rating based on individual 
unemployability is denied.

Entitlement to an effective date earlier than April 26, 2004, 
for the grant of service connection for bilateral hearing 
loss is denied.

Entitlement to an effective date earlier than April 26, 2004, 
for the grant of service connection for tinnitus is denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs