Citation Nr: 1126764	
Decision Date: 07/19/11    Archive Date: 07/29/11

DOCKET NO.  08-10 462	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to a compensable disability rating for hearing loss disability.

2.  Entitlement to a disability rating in excess of 10 percent for headaches.

3.  Entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel


INTRODUCTION

The Veteran had active service from October 1968 to October 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2006 and December 2009 rating decisions of the Department of Veterans Appeals (VA) Regional Offices (ROs) in Baltimore, Maryland, and Seattle, Washington.  The Veteran's claims have since been handled by the Baltimore, Maryland, RO.

In May 2011, the Veteran testified before the undersigned at a hearing in Washington, D.C.  A transcript of the hearing is associated with the claims file.

In May 2011, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence.

The issue of entitlement to a disability rating in excess of 10 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Audiometric test results correspond to numeric designations no worse than Level IV for the Veteran's right ear and Level II for his left ear.

2.  The Veteran's headaches occur several times per month but are not very frequent and completely prostrating, or productive of severe economic inadaptability.


CONCLUSIONS OF LAW

1.  The criteria for a compensable disability rating for a hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2010).

2.  The criteria for a 30 percent disability rating for headaches are met.  The criteria for a disability rating in excess of 30 percent for headaches have not been met or approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With regard to the claim for a disability rating in excess of 10 percent for headaches, the Veteran's claim is deemed to have arisen from an appeal of the initial evaluation following the grant of service connection.  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 was provided sufficient VCAA notice with regard to his service connection claim in September 2005, prior to the February 2006 RO rating decision that granted service connection for headaches.  Therefore, no further notice is needed under VCAA for this claim.

With regard to the claim of entitlement to a compensable disability rating for hearing loss, the Board acknowledges that complete notice was not issued prior to the adverse determination on appeal.  Under these circumstances, such notice errors may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).

In this case, the claim was readjudicated with the issuance of a Supplemental Statement of the Case in June 2010.  Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  This notice was contained in September 2005 and June 2008 letters.

Next, VA has a duty to assist the Veteran in the development of the claims.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010).  VA treatment records have been obtained.  Furthermore, the Veteran was afforded VA examinations in September 2005, October 2005, and May 2010, in which the examiners took down the Veteran's history, considered lay evidence, conducted testing, and reached conclusions based on their examinations that were consistent with the record.  The examinations are found to be adequate.

The Board notes that, while the Veteran indicated in a January 2010 written statement that he was in receipt of Social Security Disability benefits, he stated that they were due to a lung disability, which is not service-connected and not applicable to the claims decided herein.  As such, a remand to obtain these records is not necessary.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's written and oral statements are of record.  No available outstanding evidence has been identified.  While, in a March 2011 statement, the Veteran's representative requested a remand based upon the existence of outstanding VA evidence, the Veteran subsequently submitted this evidence in May 2011, along with a waiver of RO review of this evidence.  For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II.  Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.


Hearing Loss

In general, to evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d).

Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86 (2010).

Additional provisions pertain to "exceptional patterns of hearing impairment" under 38 C.F.R. § 4.86.  Specifically, these include hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  38 C.F.R. § 4.86(a), (b).  As shown below, the Veteran's hearing loss does not qualify as one of these exceptional patterns of impairment.

In October 2005, the Veteran underwent VA examination.  He reported difficulty communicating around background noise.  On audiological evaluation, pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
60
70
70
LEFT
20
25
25
50
45

The average of pure tone thresholds for 1000Hz, 2000Hz, 3000Hz, and 4000Hz is 56 on the right and 36 on the left.  Word recognition on the Maryland CNC Word Test was 84 on the right and 88 on the left.  The diagnoses were a sloping moderate and severe sensorineural hearing loss of the left and right ears.

A July 2007 VA outpatient treatment record shows that, on audiological evaluation, pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
75
90
90
LEFT
20
35
45
55
55

The average of pure tone thresholds for 1000Hz, 2000Hz, 3000Hz, and 4000Hz is 73 on the right and 48 on the left.

A second trial was performed, and the pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
80
90
85
LEFT
25
40
45
55
60

The average of pure tone thresholds for 1000Hz, 2000Hz, 3000Hz, and 4000Hz is 73 on the right and 50 on the left.  Word recognition scores were 80 percent in the right ear and 88 percent in the left ear.

In May 2010, the Veteran underwent VA examination.  On audiological evaluation, pure tone thresholds were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
75
80
75
LEFT
35
35
60
65
65

The average of pure tone thresholds for 1000Hz, 2000Hz, 3000Hz, and 4000Hz is 66 on the right and 56 on the left.  Word recognition scores were 96 percent in the right ear and 88 percent in the left ear.  The diagnosis was mild to severe sloping sensorineural hearing loss, bilaterally.

The evidence of record that shows the Veteran's hearing at its most limited is the second trial from the July 2007 VA examination report.  Applying 38 C.F.R. § 4.85, Table VI to these results, the Veteran has a numeric designation of IV for his right ear and II for his left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a noncompensable disability evaluation for the Veteran's service-connected hearing loss is warranted.  All other evidence shows hearing that is less severely limited than this.

Thus, based on the evidence above and in light of the applicable regulations, the Board finds that a noncompensable evaluation is warranted for the Veteran's service-connected hearing loss disability.  As noted above, ratings for hearing loss are determined by a mechanical application of the audiometric findings to the rating provisions and the Board has no choice but to deny the Veteran's claim at this time.  See Lendenmann v. Principi, supra.

Headaches

The Veteran's headaches are rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (2010).  Hyphenated diagnostic codes are used when a rating under one Code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27 (2010).  The appellant's specific disability is not listed in the Rating Schedule, and the RO assigned Diagnostic Code 8199 pursuant to  38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and '99.'  See 38 C.F.R. § 4.20 (2010).  The RO determined that the most closely analogous diagnostic code was 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine.

Under this Code, a 10 percent disability evaluation is warranted for characteristic prostrating attacks, averaging one in 2 months over the last several months.  A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic adaptability.  The rating criteria do not define "prostrating."  By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness."  A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness."

In October 2005, the Veteran underwent VA examination.  He described headaches occurring every other day.  They lasted from seconds to hours and responded to nothing.  They occurred suddenly, without an aura, and were located right temporally.  He had occasional nausea and vomiting.  There were no neurological symptoms.  He had seen a doctor with the diagnosis of migraines.  On examination, the Veteran was alert and oriented.  Cranial nerves and sensation were intact.  Motor and deep tendon testing was normal.  The diagnosis was migraine headaches.

An August 2006 VA outpatient treatment record shows that the Veteran reports more time with headaches than without.  At times, the right-sided headaches are short-lived.  Other times, they lasted for days.  There was no effective treatment.  Following examination, the diagnosis was right cluster headache syndrome.

In May 2010, the Veteran underwent VA examination.  His headaches were right-sided and accompanied by nausea, occasional photophobia, and right-eye tearing.  The headaches occurred daily and lasted anywhere from seconds to days.  The last several months, the Veteran had been using medication and had no severe headaches during that time.  The headaches prior to that time occurred daily and were always debilitating.  Neurological examination was completely normal, and the diagnosis was migraine headaches.

In May 2011, the Veteran testified before the undersigned.  He indicated that his headaches currently occurred approximately three times per week.  They could last for a few seconds up to days.  He has had headaches occur while he was driving, causing him to pull over.  When he was at home, he laid down, turned off the lights, and waited for it to go away.  The headaches that caused him to lie down occurred two times per week.  Those same headaches caused him to have nausea and vomiting.  These particular headaches lasted for a couple of hours and sometimes a couple of days.  The Veteran indicated that, while he had medication that helped his headaches, it stopped being effective after a few weeks.  The Veteran retired from teaching in 2005 and currently made custom furniture whenever he had work.

Based on a review of the record, the Board concludes that a disability rating of 30 percent is warranted for the Veteran's headaches.  Specifically, the Board finds that the Veteran's symptomatology more nearly approximates the rating criteria of a 30 percent rating rather than a 10 percent rating.  The Veteran described at least one headache per month that is completely prostrating, and the Board finds his testimony credible.  As such, a 30 percent rating is warranted under the criteria of Diagnostic Code 8100.

However, the Board finds that a rating in excess of 30 percent is not warranted in this case.  While the Veteran has described headaches that occur several times per month, the Board finds that they are not very frequent and completely prostrating.  Specifically, the Veteran indicated that, while he incurs a number of headaches per week, some of them last only seconds.  While others last for days at a time, the Board concludes that this does not constitute very frequent, completely prostrating headaches.  Furthermore, the Board concludes that the Veteran's headaches are not productive of severe economic inadaptability.  The Veteran reported that he had retired in 2005 from being a teacher and now did wood working.  There is no evidence in either the medical records or lay statements of severe economic inadaptability caused by the Veteran's headache disability.  As such, a 50 percent rating is not warranted.



Conclusion

The Board has also considered the applicability of other diagnostic codes for rating these disabilities, but finds that no other diagnostic codes provide a basis for higher ratings.  The disabilities also have not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule.

The Board further finds there is no evidence of any unusual or exceptional circumstances, such as frequent periods of hospitalization, related to the service-connected disorders discussed above that would take the Veteran's case outside the norm so as to warrant an extraschedular rating.  The present service-connected disorders on appeal are adequately rated under the available schedular criteria, and higher ratings are available for additional symptomatology.  Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

Additionally, for all the reasons explained above, the Board finds that there is no basis for a staged rating of the Veteran's disabilities, see Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  In reaching these conclusions, to the extent that the Veteran's claims are denied, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

A compensable rating for hearing loss is denied.

A disability rating of 30 percent is granted for headaches, subject to the laws and regulations governing the payment of VA benefits.


REMAND

The Board finds that further development is necessary prior to final adjudication of the Veteran's claim for a disability rating in excess of 10 percent for PTSD.

During his May 2011 Board hearing, the Veteran testified that his PTSD had worsened since he was last examined in May 2010.  While this hearing occurred only a year following the Veteran's last VA examination, he specifically stated that he now experienced suicidal ideation, a symptoms he had denied in May 2010 and which had not been reported in any other medical document in the record.  The Board finds that this increase in reported symptomatology warrants a re-examination to determine the current level of severity of the Veteran's PTSD.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the current symptoms and severity of his service-connected PTSD.  The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination.

All tests and studies deemed necessary by the examiner should be performed.  In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability.  A multi-axis examination, with a GAF score, should be rendered.  The examiner must also provide an opinion as to whether the Veteran's PTSD has prevented the Veteran from securing or following a substantially gainful occupation.  

A complete rationale should be given for all opinions and conclusions expressed in a typewritten report.

2.  After completion of the above development, the Veteran's claims for an increased rating for PTSD, currently rated as 10 percent disabling, should be readjudicated.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond.  The case should then be returned to the Board for further consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs