Citation Nr: 1118987 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 10-05 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for right ear hearing loss disability, and if so, whether the claim should be granted. 2. Entitlement to a rating in excess of 10 percent for tinnitus. 3. Entitlement to an initial rating in excess of 10 percent for tension headaches. 4. Entitlement to a compensable rating for left ear hearing loss disability. 5. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1987, and from January 2004 to April 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2010 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. The issues of entitlement to a rating in excess of 50 percent for PTSD and entitlement to a compensable rating for left ear hearing loss disability are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The claim of entitlement to service connection for a right ear hearing loss disability was denied in an unappealed, October 2005 rating decision. 2. The evidence received since the October 2005 rating decision includes evidence that is not cumulative or redundant of that previously of record and is sufficient, when considered with the evidence previously of record, to raise a reasonable possibility of substantiating the claim. 3. The Veteran's current right ear hearing loss disability is etiologically related to his in-service noise exposure. 4. The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. 5. The Veteran has intermittent, non-prostrating tension headaches three to four times a week, which are treated with over the counter medications. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for bilateral hearing loss disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 2. Right ear hearing loss disability was incurred during active duty. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010). 3. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260 (2010); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 4. The criteria for a rating in excess of 10 percent for chronic tension headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.124, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C.A. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided the required VCAA notice by letters mailed in April 2009 and July 2009, prior to the initial adjudication of the claims. In addition, the pertinent treatment records have been obtained and VA has afforded the Veteran appropriate VA examinations. Additionally, the Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2010. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claims. II. Claim to Reopen Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously received by agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In an unappealed, October 2005 rating decision, the RO denied service connection for a right ear hearing loss disability because the evidence failed to show that the Veteran had the claimed disability. In this regard, the Board notes that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The subsequently received evidence includes the report of a January 2009 VA examination showing that the Veteran's right ear speech recognition score on the Maryland CNC Test was less than 94 percent. This evidence directly addresses the basis of the prior denial and is clearly new and material. Accordingly, reopening of the claim is in order. III. Reopened Claim Legal Criteria Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran contends that his right ear hearing loss disability is related to his active service. The Veteran's service treatment records are negative for any complaints of or treatment for hearing loss during active service. However, the Veteran is claiming that service connection is warranted for the disability because it is related to his noise exposure in service. The record reflects that the Veteran has been granted service connection for tinnitus and left ear hearing loss disability on the basis of in-service noise exposure and the Board does not dispute that the Veteran had significant in-service noise exposure coincident to his duties in motor transport, to include while serving in Iraq. An August 2005 VA examination report notes that the Veteran reported that during his military service, he drove trucks and was around IEDs, mortars and combat. Audiological testing did not reveal audiological thresholds greater than 26 decibels at 1000, 2000, 3000, or 4000 Hertz in the right ear. Speech recognition scores were excellent at normal conversational levels. The examiner only opined that the Veteran's left ear hearing loss was consistent with rifle or artillery fire, and thus was at least as likely due to service. The Veteran was afforded a VA examination in January 2009. The Veteran reported serving as a mechanic and a truck driver and being exposed to noise from engines, small weapons, and generators. As noted above, this examination report establishes the presence of right ear hearing loss disability. The Veteran also submitted statements from his wife, daughter, and a friend. The statements indicate that the Veteran had complained several times since returning from Iraq of hearing loss in both ears as well as trouble understanding conversation. As noted above, the Veteran was afforded a hearing before the undersigned in October 2010. The Veteran testified that he has had trouble hearing in both ears since his service in Iraq. The Board has found the Veteran's testimony to be credible. In the Board's opinion the evidence supportive of the claim is at least in equipoise with that against the claim. Therefore, the Veteran is entitled to service connection for this disability. IV. Increased Rating for Tinnitus The Veteran has requested an increased schedular rating for tinnitus, which is currently rated as 10 percent disabling. In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of a 10 percent evaluation for each ear with bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court 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 schedular disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. See 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 or a higher schedular rating for tinnitus, the Veteran's claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has also considered whether this case should be referred to the Director of the VA Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the disability are contemplated by the schedular criteria. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extra-schedular consideration is required. V. Increased Rating for Headaches. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran's tension headaches are currently evaluated at 10 percent under 38 C.F.R. § 4.124, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). By a rating decision dated in April 2009, the RO granted a separate 10 percent rating for tension headaches (chronic), effective in September 2007. The Veteran appealed, asserting that his disability warranted a higher rating. The Veteran was afforded a VA examination in October 2007. He reported having some headaches intermittently on a regular basis and denied any other symptoms. He also reported being on medication. A December 2007 VA treatment record notes complaints of headaches off and on for a week. A January 2008 VA treatment record shows complaints of left sided dull head pain with elevated blood pressures. A May 2008 private treatment record indicates complaints of a lot of headaches as well as some light-headedness. The Veteran was afforded a VA examination in June 2008. The Veteran reported daily headaches. The Veteran described them as a tight sensation in the left temple region that was not radiating and not related to other symptoms. Examination showed abnormalities in range of motion of the neck but no abnormalities to suggest an encephalopathy or a neuropathy. The examiner provided a diagnosis of tension-type headaches likely related to cervical osteoarthritis. A June 2008 CT scan of the head revealed normal findings. The Veteran was afforded a July 2008 VA examination. The Veteran reported headaches that were characterized by sharp pains but without any neurological or visual disturbances. There were associated nausea and vomiting but no photophobia or phonophobia. He reported missing work two to three weeks due to headaches in the last year. Headaches occurred three to four times a week and lasted about one to two hours. The examiner provided a diagnosis of tension headaches. An August 2008 VA treatment record indicates that the Veteran complained of a migraine that had been on-going for the past six to seven months. The Veteran was afforded a VA examination in January 2009, in conjunction with a claim for a TDIU. The Veteran reported daily headaches across the front of his head with a pounding sensation with no other related symptoms. The examiner stated that the Veteran's headaches were more characteristic of simple tension-type headaches and may be related to a drug rebound headache due to the excessive amount of analgesic medication that the Veteran took. The examiner specifically stated that the headaches were not prostrating. The Veteran was afforded another VA examination in August 2009. The Veteran reported three to four headaches per month that were located in the front of his head and the crown and were throbbing in nature. The headaches lasted four to five hours. There were no other symptoms associated with the headaches and they were not prostrating. The Veteran used Aleve or butalbital to relieve the headaches. Physical examination demonstrated no abnormality of mental status or cranial nerves. The examiner provided a diagnosis of tension-type headaches that were not prostrating, that occurred at least once a week. The Veteran submitted statements from his girlfriend, and his daughter, as well as friends and coworkers that the Veteran had persistent headaches after returning from Iraq. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in October 2010. The Veteran testified that his headaches were constant, occurring at least three to four times a week. He stated that his high blood pressure medications somewhat helped his headaches. He also reported that he sought treatment for his headaches about once every other month. The Board notes that the evidence establishes that the Veteran has tension headaches rather than migraine headaches. The frequency of the headaches has varied but the Veteran has not alleged that he has had any prostrating attacks and the examiners addressing whether his headaches are prostrating have specifically stated that the headaches are not prostrating. Therefore, the disability does not warrant a higher rating under the schedular criteria. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). As noted above, in determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the disability are not specifically contemplated by the schedular criteria. Never the less, the Board notes that the Veteran has not required frequent hospitalizations for the disability. Although the Veteran has reported missing work due to the headaches, the headaches are relatively mild compared to migraine headaches and should not have a significant impact on the Veteran's ability to work. Therefore, the Board has concluded that referral of this claim for extra-schedular consideration is not required. ORDER New and material evidence having been received, reopening of the claim for service connection for right ear hearing loss disability is granted. Service connection for a right ear hearing loss disability is granted. A schedular evaluation in excess of 10 percent for tinnitus is denied. A schedular evaluation in excess of 10 percent for tension headaches is denied. REMAND The Veteran was most recently afforded a VA audiological examination in August 2009; at his October 2010 hearing, the Veteran asserted that his bilateral hearing loss had worsened since his last examination. The Board further notes that the Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The August 2009 VA examination is not in compliance with the Court's decision. In light of these circumstances and the Board's decision granting service connection for right ear hearing loss disability, further actions by the originating agency are required before the Board decides the Veteran's claim for a higher rating for bilateral hearing loss disability. The Board notes that the Veteran was last afforded a VA PTSD examination in August 2009. However, during his October 2010 hearing before the undersigned, the Veteran stated that his PTSD symptoms had worsened since his last VA examination. Therefore, the Veteran should be afforded a VA examination in order to accurately assess the severity, symptomatology, and manifestations of his PTSD. In addition, while this case is in remand status, the originating agency should obtain any outstanding, pertinent medical records. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO/AMC should undertake appropriate development to obtain a copy of any outstanding records pertaining to treatment or evaluation of the Veteran's bilateral hearing loss and PTSD during the period of each claim, to include any pertinent VA medical records for the period since January 2010. 2. Then, the RO/AMC should afford the Veteran a VA audiological examination in order to determine the current severity of the service-connected bilateral hearing loss disability. It must be conducted by a state-licensed audiologist and include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. The examiner must also provide a description of the effects of the disability on occupational functioning and daily activities. The rationale for all opinions expressed should be explained. 3. The Veteran should be afforded a VA examination to determine the current severity of his PTSD. The claims files must be provided to and reviewed by the examiner. Any studies and tests deemed necessary by the examiner should be accomplished and all results must be included in the examination report. The RO/AMC should ensure that the examiner provides all information required for rating purposes. 4. The RO/AMC should also undertake any other development it determines to be warranted. 5. Then, the RO/AMC should readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO/AMC should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs