Citation Nr: 0901910 Decision Date: 01/16/09 Archive Date: 01/22/09 DOCKET NO. 05-40 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable disability rating for bilateral hearing loss. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from June 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The competent evidence of record shows that the veteran's service-connected bilateral hearing loss is productive of level II hearing acuity in the right ear and level II hearing acuity in the left ear. 2. The current single 10 percent disability rating assigned for tinnitus is the maximum scheduler rating allowed under the applicable VA rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71(a), Diagnostic Code 6100 (2008). 2. There is no legal basis for the assignment of a scheduler rating in excess of 10 percent for the veteran's tinnitus, to include a separate 10 percent rating for each ear. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2008); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist This appeal arises from the veteran's disagreement with the disability rating assigned following the grant of service connection for bilateral hearing loss and tinnitus. 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). No additional discussion of the duty to notify is therefore required. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. The record includes service records, private medical records, VA treatment records, and a VA examination report. Therefore, the Board finds that the record as it stands includes sufficient competent evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4). The Board finds "The record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the veteran regarding what further evidence [he] should submit to substantiate [his] claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims. Analysis Disability ratings are determined by the application of the Schedule For Rating Disabilities, which is based on the average impairment of earning capacity resulting from a service-connected disability. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet .App. 589 (1995). Since the veteran is appealing the original assignment of a disability rating following an award of service connection, the severity of his service-connected bilateral hearing loss and tinnitus is to be considered during the entire period from the initial assignment of the rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's service-connected bilateral hearing loss has been rated by the RO under the provisions of Diagnostic Code 6100. Since his claim was received in 2005, the current version of rating criteria for bilateral hearing loss, which became effective June 10, 1999, is for consideration. 62 Fed. Reg. 25,202-25,210 (May 11, 1999). In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The competent medical evidence of record includes an August 2005 VA audiogram report which reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 25 55 70 80 LEFT N/A 25 60 80 85 The average puretone threshold was 57.5 in the right ear and 62.5 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. The record includes a December 2003 private audiogram, but this audiogram is insufficient for ratings purposes. 38 C.F.R. § 4.85(a) dictates that "an examination for hearing impairment for VA purposes must ....include a controlled speech discrimination test (Maryland CNC)." The December 2003 audiogram does not include a Maryland CNC speech discrimination test. As such, it cannot be used to rate the veteran's level of hearing impairment for VA purposes. In multiple statements, the veteran has requested that VA look to the hearing tests conducted in service to determine the disability rating to be assigned for his bilateral hearing loss disability; however, the Board finds that hearing tests conducted 30 years ago are not relevant to determining the current level of disability for a claim filed in 2005. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board does not find that either of the veteran's ears presents an exceptional pattern of hearing. Therefore, Table VI should be used for rating the veteran's bilateral hearing loss. The competent evidence of record shows level II hearing in the right ear and level II hearing in the left ear. Entering the category designations for each ear into Table VII results in a 0 percent disability rating under Diagnostic Code 6100. The veteran's bilateral tinnitus has been rated by the RO under the provisions of Diagnostic Code 6260. In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. Court of Appeals for Veterans Claims (CAVC) held that the pre-1999 and pre-June 13, 2003 versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the CAVC erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. The veteran's service-connected tinnitus has been assigned a 10 percent rating which is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." The record does not include any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. The veteran has not required frequent periods of hospitalization for his hearing loss and tinnitus disabilities and treatment records are void of any finding of exceptional limitation beyond that contemplated by the schedule of ratings. The Board does not doubt that limitation caused by hearing loss has an adverse impact on employability; however, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. Section 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Consequently, the Board finds that the current disability ratings assigned in this decision adequately reflect the clinically established impairment experienced by the veteran and higher ratings are denied on an extra-schedular basis. In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER An initial compensable disability rating for bilateral hearing loss is denied. An initial disability rating in excess of 10 percent for service-connected tinnitus is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs