Citation Nr: 1110014 Decision Date: 03/14/11 Archive Date: 03/24/11 DOCKET NO. 09-29 468 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a compensable rating for bilateral hearing loss. ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from June 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and December 2008 RO rating decisions. The June 2008 RO decision, in pertinent part, denied a compensable rating for bilateral hearing loss. The December 2008 decision denied service connection for tinnitus. The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and [is/are] REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's bilateral hearing loss is manifested by auditory acuity Level III in the right ear and auditory acuity Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence the VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule. In this case, in a January 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or submit any further evidence in his possession that pertains to the claim. A January 2008 letter (noted above), as well as an April 2009 letter, also advised the Veteran of how disability evaluations are assigned and the type of evidence which impacts those determinations. The case was last readjudicated in November 2009. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include: the Veteran's service treatment records; post-service VA treatment records; and VA examination reports. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified of and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the Veteran. As such, there is no indication that there is any prejudice to the Veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes the following: his contentions; service treatment records; post-service VA treatment records; and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). A decision of the Court has held that in determining the present level of disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In Fenderson v. West, 12 Vet.App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, from the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86, but the veteran's test results do not meet the numerical criteria for such a rating. In this regard, his pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are not 55 decibels or more, nor are the average pure tone thresholds 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, in either ear. Thus, application of 38 C.F.R. § 4.86 is not warranted, and his bilateral hearing loss is to be rated by the usual method. VA treatment records dated from March 2007 to March 2008 show treatment for multiple disorders, including bilateral hearing loss. For example, a December 2007 VA treatment report noted, as to an assessment, that the Veteran was counseled that he had severe high frequency sensorineural hearing loss, bilaterally. The examiner indicated that the Veteran's word recognition was excellent, bilaterally. The audiological evaluation results were referred to, but not specifically reported at that time. A March 2008 VA audiological examination report indicated that audiometric results in December 2007 showed that pure tone thresholds in the Veteran's right ear were 15, 35, 90, and 95 decibels at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold in the Veteran's right ear was 59 decibels and the speech recognition ability, using the Maryland CNC Test, was apparently 88 percent. Pure tone thresholds in the Veteran's left ear in December 2007 were 10, 30, 50, and 65 decibels at the same frequencies. The average pure tone threshold in the Veteran's left ear was 39 decibels and the speech recognition ability, using the Maryland CNC Test, was apparently 92 percent. The examiner reported, as to a summary, that the current (March 2008) audiometric results indicated that pure tone thresholds in the Veteran's right ear were 15, 40, 90, and 95 decibels at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold in the Veteran's right ear was 60 decibels and the speech recognition ability, using the Maryland CNC Test, was 88 percent. Pure tone thresholds in the Veteran's left ear were 10, 30, 50, and 65 decibels at the same frequencies. The average pure tone threshold in the Veteran's left ear was 39 decibels and the speech recognition ability, using the Maryland CNC Test, was 92 percent. The examiner commented that for the four frequency average of 1000, 2000, 3000, and 4000 Hertz, the Veteran had a moderately severe sensorineural hearing loss in his right ear and a mild sensorineural hearing loss in his left ear. The examiner reported that the Veteran's speech recognition ability was slightly impaired for both ears. VA treatment records dated from March 2008 to April 2009 refer to continuing treatment for multiple disorders. The Board observes that a December 2007 VA treatment report did not specifically include audiological evaluation results that were performed at that time. The Board notes, however, that those audiometric results were subsequently reported pursuant to a subsequent March 2008 VA audiological examination report. The Board observes that the speech recognition ability results for the Veteran's right ear and left ear, using the Maryland CNC Test, were apparently the same as the results indicated at the time of the March 2008 audiological examination (88 percent and 92 percent, respectively). The Board observes, therefore, that the December 2007 audiometric results rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level III in the right ear and auditory acuity Level I in the left ear under Table VI of 38 C.F.R. § 4.85. Using Table VII of 38 C.F.R. § 4.85, the results warrant a 0 percent (noncompensable) rating under Diagnostic Code 6100. The Board notes that the most recent March 2008 VA audiological examination report rendered decibel averages and speech discrimination scores that correlate to auditory acuity Level III in the right ear and auditory acuity Level I in the left ear under Table VI of 38 C.F.R. § 4.85. Using Table VII of 38 C.F.R. § 4.85, those findings would also warrant no more than a 0 percent (noncompensable) rating under Diagnostic Code 6100. Based on the reports during the period of the appeal, the Veteran's hearing tests do not support findings that would warrant more than the assigned 0 percent (noncompensable) rating. The Board is sympathetic to the Veteran's contentions regarding the severity of his service-connected bilateral hearing loss. However, applying the rating criteria to the audiological test results does not warrant a higher (compensable) rating. The use of hearing aids does not affect the Veteran's rating, as hearing tests are conducted without hearing aids. 38 C.F.R. § 4.85(a). The Board has also considered whether the record raises the matter of extraschedular ratings under 38 C.F.R. § 3.321(b)(1). The evidence does not reflect, however, that the Veteran's bilateral hearing loss, alone, has caused marked interference with employment (i.e., beyond that already contemplated in the assigned ratings), or necessitated frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Based on the foregoing, the Board finds that referral for consideration of assignment of extra-schedular ratings is not warranted. 38 C.F.R. § 3.3219(b)(1). As the preponderance of the evidence is against the claim for a compensable rating, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for bilateral hearing loss is denied. REMAND The other issue on appeal is entitlement to service connection for tinnitus. The Board finds that there is a further VA duty to assist the appellant in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Veteran contends that he has tinnitus that is related to service. He specifically alleges that his tinnitus began while he was serving in Vietnam. The Veteran reports that he was riding in a truck that hit a land mine during his period of service and that he was blown out of the truck and suffered bleeding in his right ear, as well as ringing in both ears. He alleges that over the years since his period of service, he has suffered from ringing and whistling that would come and go. As noted above, the Veteran had active service from June 1967 to March 1970. His DD Form 214 indicates that his occupational specialty was listed as "supply". The Veteran's service treatment records do not show treatment for tinnitus. His service treatment records do show he was treated for right ear problems on one occasion. A February 1969 treatment entry noted that the Veteran was seen for complaints of decreased hearing in his right ear since that morning. The assessment was serous otitis. Post-service VA treatment records, including examination reports, show treatment for tinnitus. For example, the first post-service evidence of record of tinnitus was pursuant to a June 1986 VA audiological examination report which noted that the Veteran had periodic ringing tinnitus (non-localized) for the past year. A July 1988 VA audiological examination report noted that the Veteran had a history of periodic ringing tinnitus (non-localized). A March 2008 VA audiological examination report noted that the Veteran's claims file was made available for review. The examiner indicated that the Veteran's military noise exposure should have been previously detailed as he was service-connected for bilateral hearing loss at 0 percent (noncompensable). The Veteran reported that he had noticed tinnitus for years and that it wasn't a big deal. He stated that he would have ringing in one or both ears. He reported that he thought that the ringing occurred in both ears, but not at the same time. The Veteran indicated that his tinnitus would come and go, and that he would have ringing in his ears maybe once every couple of months for five to ten minutes. The examiner commented that she thought that the Veteran's tinnitus was typical of the normal population and that it was not related to his military noise exposure. The Board observes that the examiner did not specifically provide a rationale for her opinion that the Veteran's tinnitus was not related to his military noise exposure. Additionally, the Board notes that the examiner did not discuss the Veteran's military noise exposure, to including any allegations of ringing in the ears, as he was already service-connected for bilateral hearing loss. Further, the Board observes that in a subsequent February 2009 notice of disagreement, as well as in an August 2009 substantive appeal, the Veteran reported that his tinnitus began while he was in Vietnam. He specifically indicated that he was riding in a truck that hit a land mine during his period of service and that he was blown out of the truck and suffered bleeding in his right ear, as well as ringing in both ears. In his August 2009 substantive appeal, the Veteran also reported that over the years since his period of service, he had suffered from ringing and whistling that would come and go. The VA examiner did not have access to these statements at the time of the March 2008 VA audiological examination. The Board also observes that although the Veteran's contemporaneous service treatment records do not corroborate his contentions that he noticed tinnitus in service, the Veteran is competent to observe tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is reporting a contemporaneous medical diagnosis). The Board notes, however, that at the time a June 1986 VA audiological examination report (noted above), the examiner solely noted that the Veteran had periodic tinnitus for the past year. The Board observes, therefore, that the Veteran has essentially not been afforded a VA examination with the opportunity to obtain a responsive etiological opinion, following a thorough review of the entire claims folder, as to his claim for service connection for tinnitus. Such an examination should be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for tinnitus since April 2009. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since April 2009 should be obtained. 2. Schedule the appellant for a VA audiological examination to determine the nature and etiology of his claimed tinnitus. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is as likely as not (50 percent or greater probability) that the Veteran's tinnitus is etiologically related to his period of service, or is the result of acoustic trauma during service. The examiner should also specifically address the Veteran's report of his tinnitus having first manifested during his period of service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). 3. Thereafter, readjudicate the Veteran's claim for entitlement to service connection for tinnitus. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran, and provide an opportunity to respond before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the appellant with the development of his claim. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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. 2007). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs