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