Citation Nr: 0814748	
Decision Date: 05/05/08    Archive Date: 05/12/08

DOCKET NO.  06-03 832A	)	DATE
	)
	MERGED APPEAL	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to a compensable evaluation for bilateral 
hearing loss.

2.  Entitlement to an effective date earlier than September 
27, 2004, for the award of service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Scott Shoreman, Associate Counsel


INTRODUCTION

The veteran had active service from September 1970 to August 
1974.

This matter comes before the Board of Veterans' Appeals 
(Board) from March 2003 and April 2005 rating decisions by 
the above Department of Veterans Affairs (VA) Regional Office 
(RO).

The veteran alleged in a July 2007 letter that there was 
clear and unmistakable error (CUE) when the RO denied his 
claim for service connection for bilateral hearing loss and 
tinnitus in a 1977 rating decision.  The record shows that 
the 1977 rating was not appealed, and therefore became final.  
The issue of whether there was CUE in the 1977 rating 
decision has not been developed on appeal to the Board, and 
is therefore referred to the RO for appropriate action.

Although the issue of an increased rating for tinnitus is not 
at issue in the present decision, the Board notes that an 
evaluation in excess of 10 percent is not available.  See 
38 C.F.R. § 4.87, Diagnostic Code 6260.


FINDINGS OF FACT

1.  Currently, audiometric testing shows an average 56 
decibel loss, with a speech recognition score of 96 percent, 
in the right ear (level I) and an average 50 decibel loss, 
with a speech recognition score of 88 percent, in the left 
ear (level II).


2.  At no time has the veteran's hearing loss been shown to 
produce an exceptional or unusual disability picture, with 
such factors as marked interference with employment or 
frequent periods of hospitalization, as to render impractical 
the application of the regular schedular disability 
evaluation standards.

3.  When the veteran submitted a claim in December 2002 to 
reopen a previously denied claim for bilateral hearing loss, 
he did not also submit a claim to reopen a previously denied 
claim for tinnitus.

4.  On March 21, 2003, the veteran submitted a written 
statement to the RO in which he asserted that he had 
increased ringing in his ears.  With consideration of the 
doctrine of resolving reasonable doubt in favor of the 
veteran, the Board finds that the letter constituted an 
informal claim to reopen a previously denied claim of service 
connection for tinnitus.

5.  The RO was not in possession of any communication prior 
to March 21, 2003, which can reasonably be construed as a 
formal or informal claim to reopen a previously denied claim 
of service connection for tinnitus.


CONCLUSION OF LAW

1.  The criteria for an initial compensable evaluation for 
bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 
4.85, 4.86 (2007), Diagnostic Code (DC) 6100 (2007).

2.  Giving the benefit of the doubt to the veteran, the 
effective date of the award of a 10 percent disability 
evaluation for the service connected tinnitus is March 21, 
2003.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.7, 
4.87 DC 6260 (2007).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant of the information and evidence not of record that 
is necessary to substantiate the claim; to indicate which 
information and evidence VA will obtain and which information 
and evidence the claimant is expected to provide; and to 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claim.  38 
U.S.C.A. § 5.103(a); 38 C.F.R. § 3.159(b).  The U.S. Court of 
Appeals for Veterans Claims has held that VCAA notice should 
be provided to a veteran before the initial RO decision on a 
claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, 
however, VCAA notice is provided after the initial decision, 
such a timing error can be cured by subsequent readjudication 
of the claim, as in a Statement of the Case (SOC) or 
Supplemental SOC (SSOC).  Mayfield v. Nicholson, 20 Vet. App. 
537, 543 (2006).

The U.S. Court of Appeals for the Federal Circuit has held 
that, if a claimant can demonstrate error in VCAA notice, 
such error should be presumed to be prejudicial.  VA then 
bears the burden of rebutting the presumption, by showing 
that the essential fairness of the adjudication has not been 
affected because, for example, actual knowledge by the 
claimant cured the notice defect, a reasonable person would 
have understood what was needed, or the benefits sought 
cannot be granted as a matter of law.  Sanders v. Nicholson, 
487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. 
March 21, 2008) (No. 07-1209).

In February 2005, the RO sent the veteran a letter informing 
him of the types of evidence needed to substantiate his claim 
and its duty to assist him in substantiating his claim under 
the VCAA.  The letter informed the veteran that VA would 
assist him in obtaining evidence necessary to support his 
claim, such as medical records, employment records, or 
records from other Federal agencies.  He was advised that it 
is his responsibility to provide or identify, and furnish 
authorization where necessary for the RO to obtain, any 
supportive evidence pertinent to his claim. 

The Board finds that the content of the letter provided to 
the veteran complied with the requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to 
notify and assist.  In addition, the March 2003 rating 
decision, July 2003 rating decision, April 2005 rating 
decision, August 2004 SOC, January 2006 SOC, and July 2007 
SSOCs explained the basis for the RO's action, and the SOCs 
and SSOCs provided him with additional 60-day periods to 
submit more evidence.  It appears that all obtainable 
evidence identified by the veteran relative to his claim has 
been obtained and associated with the claims file, and that 
neither he nor his representative has identified any other 
pertinent evidence, not already of record, which would need 
to be obtained for a fair disposition of this appeal.  It is 
therefore the Board's conclusion that he has been provided 
with every opportunity to submit evidence and argument in 
support of his claims, and to respond to VA notices.

Moreover, the claimant has not demonstrated any error in VCAA 
notice, and therefore the presumption of prejudicial error as 
to such notice does not arise in this case.  See Sanders v. 
Nicholson, supra.

For an increased-compensation claim, 38 U.S.C.A. § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, 22 Vet. App. 37 (2008).  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 that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  

The claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant diagnostic codes, which typically 
provide for a range in severity of a particular disability 
from noncompensable to as much as 100 percent (depending on 
the disability involved), based on the nature of the symptoms 
of the condition for which disability compensation is being 
sought, their severity and duration, and their impact upon 
employment and daily life.  As with proper notice for an 
initial disability rating and consistent with the statutory 
and regulatory history, the notice must also provide examples 
of the types of medical and lay evidence that the claimant 
may submit (or ask the Secretary to obtain) which are 
relevant to establishing entitlement to increased 
compensation - e.g., competent lay statements describing 
symptoms, medical and hospitalization records, medical 
statements, employer statements, job application rejections, 
and any other evidence showing an increase in the disability 
or exceptional circumstances relating to the disability.  
Vazquez-Flores, 22 Vet. App. at 43-44.  In the present case, 
the notifications to the veteran were entirely adequate to 
inform him, or any reasonable person for that matter, of what 
was required, and that he needed to provide evidence with 
regard to how his disabilities affect him in his daily life.  
There is no prejudicial error shown.

In addition to the foregoing harmless-error analysis, the 
decision of the Court in Dingess v. Nicholson, 19 Vet. App. 
473 (2006) requires more extensive notice in claims for 
compensation, e.g., as to potential downstream issues such as 
disability rating and effective date.  This requirement was 
fulfilled in a March 2006 letter that the RO sent to the 
veteran.

Accordingly, we find that VA has satisfied its duty to assist 
the veteran in apprising him as to the evidence needed, and 
in obtaining evidence pertinent to his claim under the VCAA.  
Therefore no useful purpose would be served in remanding this 
matter for yet more development.  Such a remand would result 
in unnecessarily imposing additional burdens on VA, with no 
additional benefits flowing to the veteran.  The Court of 
Appeals for Veteran Claims has held that such remands are to 
be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is 
an approximate balance in the evidence regarding the merits 
of an issue material to the determination of the matter, the 
benefit of the doubt in resolving each such issue shall be 
given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
of Appeals for Veterans Claims held that an appellant need 
only demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  The 
Court has also stated, "It is clear that to deny a claim on 
its merits, the evidence must preponderate against the 
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert.

II.  Applicable Laws and Regulations

A.  Increased Evaluation

Disability evaluations are determined by the application of a 
schedule of ratings which is based on the average impairment 
of earning capacity.  Separate diagnostic codes identify the 
various disabilities.  38 U.S.C.A. § 1155 (West 2002 & Supp. 
2007); 38 C.F.R. Part 4 (2007).  When a question arises as to 
which of two evaluations shall be assigned, 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 determining the disability evaluation, VA has a duty to 
acknowledge and consider all regulations which are 
potentially applicable based upon the assertions and issues 
raised in the record and to explain the reasons used to 
support the conclusion.  Schafrath v. Derwinski, 1 Vet. App. 
589 (1991).  These regulations include, but are not limited 
to, 38 C.F.R. § 4.1, which requires that each disability be 
viewed in relation to its history and that there be an 
emphasis placed upon the limitation of activity imposed by 
the disabling condition, and 38 C.F.R. § 4.2, which requires 
that medical reports be interpreted in light of the whole 
recorded history, and that each disability must be considered 
from the point of view of the veteran working or seeking 
work.  These requirements for the evaluation of the complete 
medical history of the claimant's condition operate to 
protect claimants against adverse decisions based upon a 
single, incomplete, or inaccurate report, and to enable VA to 
make a more precise evaluation of the disability level and 
any changes in the condition.

In general, when an increase in the disability rating is at 
issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  However, when the current appeal arose from the 
initially assigned rating, consideration must be given as to 
whether staged ratings should be assigned to reflect 
entitlement to a higher rating at any point during the 
pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 
(1999).  Moreover, staged ratings are appropriate in any 
increased-rating claim in which distinct time periods with 
different ratable symptoms can be identified.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

The veteran's hearing loss has been evaluated under 38 C.F.R. 
§ 4.85, DC 6100.  This diagnostic code sets out the criteria 
for evaluating hearing impairment using pure tone threshold 
averages and speech discrimination scores.  Numeric 
designations are assigned based upon a mechanical use of 
tables found in 38 C.F.R. § 4.85; there is no room for 
subjective interpretation.  See Acevedo-Escobar v. West, 12 
Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 
345, 349 (1992).

Audiometric results are matched against Table VI to find the 
numeric designation, then the designations are matched with 
Table VII to find the percentage evaluation to be assigned 
for the hearing impairment.  To evaluate the degree of 
disability for service-connected hearing loss, the Rating 
Schedule establishes 11 auditory acuity levels, designated 
from level I for essentially normal acuity, through level XI 
for profound deafness.  38 C.F.R. § 4.85.  When impaired 
hearing is service connected in one ear only, the non-
service-connected ear will be assigned a designation of level 
I from Table VII.  38 C.F.R. § 4.85(f).


The provisions of section 4.86 address exceptional patterns 
of hearing loss which, are defined as when each of the pure 
tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz) is 
55 decibels or more, or when the pure tone threshold is 30 
decibels or less at 1000 Hz and 70 decibels or more at 2000 
Hz.  38 C.F.R. § 4.86 (2007).

B.  Earlier Effective Date

A 10 percent evaluation is warranted for recurrent tinnitus.  
See 38 C.F.R. Part 4, DC 6260.  This diagnostic code also 
includes the following notes:

Note (1):  A separate evaluation for tinnitus may be 
combined with an evaluation under diagnostic codes 6100, 
6200, 6204, or other diagnostic code, except when tinnitus 
supports an evaluation under one of those diagnostic 
codes. 
Note (2):  Assign only a single evaluation for recurrent 
tinnitus, whether the sound is perceived in one ear, both 
ears, or in the head.  
Note (3):  Do not evaluate objective tinnitus (in which 
the sound is audible to other people and has a definable 
cause that may or may not be pathologic) under this 
diagnostic code, but evaluate it as part of any underlying 
condition causing it. 

Except as otherwise provided, the effective date of an 
evaluation and award of pension, compensation or dependency 
and indemnity compensation based on an original claim, a 
claim reopened after final disallowance, or a claim for 
increase will be the date of receipt of the claim or the date 
entitlement arose, whichever is the later.  38 U.S.C.A. 
5110(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007).

III.  Factual Background and Analysis

A.  Increased Evaluation

At a March 2003 VA examination, on the authorized 
audiological evaluation, pure tone thresholds, in decibels, 
were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
40
80
80
LEFT
15
15
30
70
70

The average dB loss in the right ear was 54 and 46 in the 
left.  Speech audiometry revealed speech recognition ability 
of 96 percent in the right ear and of 100 in the left ear.

Private treatment notes from June 2004 indicate that an 
audiogram showed severe high frequency hearing loss 
bilaterally.  No conductive element was apparent, speech 
discrimination was essentially within normal limits, and the 
veteran exhibited symptoms of recruitment to certain higher 
frequency stimuli.

At a March 2005 VA examination, on the authorized 
audiological evaluation, pure tone thresholds, in decibels, 
were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
35
90
80
LEFT
40
20
30
75
75

The average dB loss in the right ear was 56 and 50 in the 
left.  Speech audiometry revealed speech recognition ability 
of 96 percent in the right ear and of 88 in the left ear.

A review of the examinations of record indicate that, 
according to Table VI, the level of loss in the right ear has 
been at Level I.  The level of loss in the left ear has 
ranged between Level I and Level II, with Level II being more 
recent.  Table VII of 38 C.F.R. § 4.85 indicates that these 
levels of hearing impairment warrant the assignment of a 
noncompensable evaluation.  Exceptional patterns of hearing 
loss under 38 C.F.R. § 4.86 are not indicated.

The fact that the veteran's hearing acuity is less than 
optimal does not by itself establish entitlement to a higher 
disability rating.  To the contrary, it is clear from the 
Rating Schedule that a higher rating can be awarded only when 
loss of hearing has reached a specified measurable level.  
That level of disability has not been demonstrated in the 
present case. 

Finally, in light of the holding in Fenderson, supra, the 
Board has considered whether the veteran is entitled to a 
"staged" rating for his service-connected bilateral hearing 
loss disability, as the Court indicated can be done in this 
type of case.  Based upon the record, we find that at no time 
since July 8, 2004, one year before he filed his claim for an 
increased rating, has the disability on appeal been more 
disabling than as currently rated under the present decision 
of the Board. 

Under the provisions of 38 C.F.R. § 3.321, in exceptional 
cases an extraschedular evaluation can be provided in the 
interest of justice.  The governing norm in such a case is 
that the case presents such an unusual or exceptional 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical the application of 
regular Rating Schedule standards.  We recognize that, as he 
testified at his Travel Board hearing, the veteran was unable 
to work as a fire dispatcher because of his hearing loss.  In 
addition, the veteran testified that after he sustained a 
non-service connected leg injury the Industrial Commission of 
Arizona recommended that he pursue jobs such as telephone 
solicitor, which he cannot perform due to his hearing loss.  
However, there is nothing in the record which indicates that 
there is not other employment which the veteran could 
perform.  While the Board acknowledges that the veteran 
experiences difficulties hearing certain types of speech at 
home and in work settings, in light of his documented 
audiometric test results and the lack of a showing of marked 
interference in the work setting, the Board finds that 
circumstances warranting referral of the case to the Director 
of the Compensation and Pension Service or the Under 
Secretary for Benefits for extraschedular consideration do 
not exist in the present case.

The preponderance of the evidence is against the claim, and 
there is no reasonable doubt to be resolved.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102.


B.  Earlier Effective Date

The evidence of record indicates that the veteran was awarded 
service connection for tinnitus in a rating action issued in 
April 2005.  The condition was assigned a 10 percent rating, 
effective September 27, 2004, the date of his claim.  The 
veteran maintains that his December 2002 claim to reopen his 
previously denied claim for service connection for bilateral 
hearing loss should also have been treated as a claim for 
tinnitus because he was unaware that he needed to apply for 
it separately from hearing loss.  The Federal Circuit 
recently held that "claims based upon distinctly and 
properly diagnosed diseases or injuries cannot be considered 
the same claim"  Boggs v. Peake, No. 2007-7137 (Fed. Cir. 
March 26, 2008).  Since tinnitus is considered a separate 
disease from hearing loss, the veteran's December 2002 claim 
for hearing loss cannot be considered to also be a claim for 
tinnitus.  Therefore, the date of the December 2002 claim for 
bilateral hearing loss cannot be used as the effective date 
for the veteran's service connected tinnitus.

Upon further review of the record, however, the Board notes 
that, on March 21, 2003, the RO received a statement from the 
veteran in which he wrote that he had increased ringing in 
his ear and indicated he was seeking that it be found to be 
service connected.  Applying a liberal reading to that 
written communication, we find that the veteran's statement 
constituted an informal claim for tinnitus.  See 38 C.F.R. 
§ 3.155(a).  In June 2004 a private physician who had treated 
the veteran for his hearing loss and tinnitus wrote that the 
veteran's tinnitus had been present for ten years.  Thus, the 
record shows that the veteran suffered from tinnitus when he 
submitted his March 21, 2003, informal claim.  The Board 
therefore finds that the grant of entitlement to a 10 percent 
evaluation for tinnitus can be made effective from March 21, 
2003.

The Court of Appeals for Veterans Claims holding in Rudd v. 
Nicholson, 20 Vet. App. 296 (2006) dictates that the veteran 
cannot have an effective date earlier than March 21, 2003.  
Since the prior claim from December 1976 became final and 
therefore cannot be challenged without a showing of CUE, a 
claim for an effective date earlier than March 21, 2003, 
would be a "freestanding" claim for an earlier effective 
date, and "such a possibility vitiates the rule of 
finality."  Rudd, 20 Vet. App. at 300.  A freestanding claim 
for an earlier effective date for a 10 percent evaluation for 
the service-connected tinnitus seeks a benefit not provided 
by law.  When the law is dispositive against a claim the 
claim must be denied or the appeal terminated.  Sabonis, 6 
Vet. App at 430.  Therefore, pursuant to Rudd, 20 Vet. App. 
at 300, an effective date earlier than March 21, 2003, cannot 
be granted.  

In conclusion, it is found that, after weighing all the 
evidence of record and resolving reasonable doubt in the 
veteran's favor, the evidence supports the claim for an 
earlier effective date of March 21, 2003, for the award of 
the 10 percent disability evaluation for service-connected 
tinnitus.


ORDER

Entitlement to an evaluation in excess of 10 percent for 
bilateral hearing loss is denied.

Entitlement to an effective date of March 21, 2003, for the 
award of a 10 percent disability evaluation for service-
connected tinnitus is granted, subject to the statutes and 
regulations governing the payment of monetary benefits.



________________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs