Citation Nr: 1237493 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-23 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective August 10, 2007, and denied service connection for tinnitus. In March 2011, the Board remanded the matter to the RO in order to provide the Veteran with proper notice, to obtain any remaining treatment records, and to schedule a VA examination in order to assess the current severity of his bilateral hearing loss. In August 2012, the Board requested a Veterans' Health Administration (VHA) expert opinion as to the tinnitus claim. See 38 U.S.C.A. § 7109(a) (West 2002); Padgett v. Nicholson, 19 Vet. App. 133, 145 (2005). This opinion was received in September 2012. Although the Veteran was not provided a copy of this opinion, this is nonprejudicial because his claim for service connection for tinnitus is being granted. Also, because the opinion is not pertinent to the claim for a higher rating for hearing loss, remand for the issuance of a supplemental statement of the case is not required. The April 2011 VA examination report notes the presence of vertigo that may be associated with the Veteran's asymmetric hearing loss and/or tinnitus. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's tinnitus was caused by his military service. 2. VA audiometric test results from February 2008 and April 2011 show that the Veteran had level I hearing in his right ear and level I hearing in his left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012). 2. The criteria for an initial compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim: (1) Veteran status, (2) existence of a disability, (3) a connection between the Veteran's service and the disability, (4) the degree of disability, and (5) the effective date of the disability. Notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In this decision, the Board grants service connection for tinnitus. This award represents a complete grant of the benefit sought on appeal on that issue. Thus, any deficiency in VA's compliance with the duty to notify and assist or the Board's March 2011 Remand order is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran is also challenging the initial noncompensable evaluation assigned for the grant of service connection for bilateral hearing loss. Where service connection has been granted, and an initial disability rating and effective date have been assigned, the purpose of 5103(a) notice has been fulfilled as the service connection claim has been proven. Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that where a service-connection claim has been substantiated, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to downstream elements). Nevertheless, the VA sent a letter in August 2007 that fulfilled the requirements of section 5103(a) and Dingess. Regarding the duty to assist, the RO has obtained all relevant records adequately identified by the Veteran, including his service records; VA treatment records from the VA Medical Center in Murfreesboro, Tennessee; and his private treatment records from Dr. Bryant, as requested on his January 2009 VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA). The Veteran was also provided with thorough and contemporaneous VA examinations in February 2008 and April 2011. The examiner reviewed the medical records in the claims folder; considered the Veteran's medical history, including his lay reports of his symptomatology; and described his disability in sufficient detail, including a full description of the functional loss caused by his hearing loss. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (holding that, in regard to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must also fully describe the functional effects caused by a hearing disability in his or her final report). Therefore, VA has fulfilled the duty to assist the Veteran in obtaining evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c). The duty to assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007); Forcier v. Nicholson, 19 Vet. App. 414, 421-22 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). Therefore, because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. The Board is also satisfied that the AMC substantially complied with the Board's September 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that it directed the RO to obtain complete copies of any recent VA treatment records, to provide the Veteran with a current VA examination, to obtain an interpretation of the uninterpreted audiograms of record, and to readjudicate the Veteran's claim. The Veteran was provided with a current VA examination, all relevant VA records were obtained, and audiogram interpretation is no longer required as the Board is able to decipher the private audiogram chart into numerical data. See Savage v. Shinseki, 24 Vet. App. 259, 272 (2011) (acknowledging that the Board may interpret results from a private audiometric graph where it has the expertise to do so); cf. Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (explaining that the Court, but not the Board, is precluded from interpreting results from an audiometric graph as it constitutes fact finding in the first instance). Thus, there is no prejudice to the Veteran as a result of the VA examiner's failure to interpret the uninterpreted audiograms of record. The Veteran's claim was readjudicated in an April 2012 supplemental statement of the case (SSOC). I. Service Connection Claim The Veteran contends that he currently suffers from ringing of the ears due to nerve damage caused by exposure to loud noise from gunfire. See June 2009 appeal; November 2007 statement. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disease diagnosed after service may be service connected when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); see, e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see generally 38 C.F.R. § 3.303(a). Service connection may be granted on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence that shows: (1) a current disability exists; and (2) the current disability is either (a) proximately due to or the result of service-connected disease or injury or (b) aggravated by an already service-connected disease or injury. Smith v. Shinseki, 24 Vet. App. 40, 49 (2010). When evaluating a claim for disability benefits, VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay witness is also competent to testify to the occurrence of an in-service injury or incident where the issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Once evidence is determined to be competent, the Board must determine whether the evidence is credible. In assessing the credibility of the evidence, the Board may properly consider facial plausibility, internal consistency, consistency with the other evidence of record, the demeanor of the witness if oral testimony is given, self-interest, and possible bias. Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345-47 (1999); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Upon weighing the evidence, if 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of unilateral tinnitus of the left ear. See February 2008 and April 2011 VA examination reports. Furthermore, the Veteran's lay evidence and service records establish in-service noise exposure. The Veteran served in the Army artillery from July 1968 to April 1970. He was regularly exposed to noise as his occupational specialty required him to regularly test fire the weapons in the battery. The Veteran is competent to testify to noise exposure, and, as his statements are corroborated by his service records, the Board finds that his statements regarding noise exposure in service are credible. See Grottveit, 5 Vet. App. at 93; Gardin, 613 F.3d at 1379-1380. Lastly, in September 2012, a VA otolaryngologist determined that it was at least as likely as not that the Veteran's unilateral left ear tinnitus is related to exposure to gunfire in service as military noise exposure is the most likely cause in the absence of evidence indicating any other etiology. Additionally, she explained that asymmetric hearing loss with tinnitus is extremely common in service members who were in close proximity to active weapons fire. With regard to the delayed onset of the Veteran's tinnitus, the otolaryngologist noted that a time lapse between exposure and reported onset can be explained by the incremental progression of hearing loss until it reached the point where it became productive of symptoms of tinnitus. Conversely, both the February 2008 and 2011 VA examination reports show that tinnitus is not related to service due to the lapse of time between exposure and onset. As this lapse has been fully explained and resolved by the otolaryngologist, who has a greater degree of relevant expertise than the audiologists who conducted the February 2008 and April 2011 VA examinations, the Board finds that the September 2012 opinion submitted by the otolaryngologist is more probative due to the thorough rationale provided that accounts for and dispenses with the justifications put forth by the VA examiners. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). In summary, the evidence of record shows a diagnosis of unilateral left ear tinnitus; exposure to noise from weapons fire in service; and an etiological relationship between the Veteran's currently diagnosed unilateral tinnitus of the left ear and the noise exposure in service. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167. Therefore, resolving any doubt in favor of the Veteran, service connection for tinnitus is warranted. See id.; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. II. Increased Rating Claim In a March 2008 rating decision, the Nashville RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective August 10, 2007. The Veteran contends that the extent of the damage to his ears sustained in service warrants a higher rating. See November 2008 notice of disagreement; June 2009 appeal. Disability ratings are based on the average impairment of earning capacity resulting from the disability. 38 U.S. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged ratings." Id. at 126. Here, the record shows symptoms that consistently fall under the same rating criteria so the assignment of staged ratings is not applicable. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing (Maryland CNC) together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Other than exceptional cases, VA arrives at the proper designation of hearing loss in each ear by mechanical application of Table VI, or, in certain circumstances, Table VIA; Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. As noted above, the Board is responsible for evaluating all evidence and assigning due probative weight. Madden, 125 F.3d at 1481 (Fed. Cir. 1997); see also Washington, 19 Vet. App. at 367-68; Owens, 7 Vet. App. at 433. Upon weighing the evidence, if 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; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. The Veteran submitted a private audiogram dated July 2005 showing a diagnosis of moderate sensorineural hearing loss with a notch at 4000 Hertz on the right and normal hearing, sloping from mild to severe sensorineural hearing loss from 1000 Hertz to 6000 Hertz, and rising back to normal at 8000 Hertz on the left. He also submitted a record of a May 2006 VA audiological evaluation. Hearing threshold levels, in decibels, were as follows, in July 2005: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 50 LEFT 15 25 35 45 75 And in May 2006, hearing threshold levels, in decibels, were as is shown below: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 10 50 LEFT 15 30 40 45 70 The average hearing threshold for the Veteran's right ear was 23.75 decibels in July 2005 and 25 decibels in May 2006. His average hearing threshold for the left ear was 45 decibels in July 2005 and 46.25 in May 2006. The Veteran received a word recognition score of 96 percent for both ears in July 2005, and 92 percent for the right ear and 88 percent for the left ear in May 2006. It is not clear whether the July 2005 results were obtained using the Maryland CNC test, as required by 38 C.F.R. § 4.85(a), but if treated as such, the results would nevertheless equate to a noncompensable rating as the results warrant only a level I designation for each ear. The audiometric data from May 2006 equate to a level I designation for the right ear and level II designation for the left ear under Table VI. Table VIa is inapplicable as the Veteran does not meet the criteria in 38 C.F.R. § 4.86. October 2007 VA audiology records show that the Veteran's results were stable as compared to May 2006. The Veteran was provided with a VA audiological examination in February 2008. He described difficulty understanding speech in the presence of background noise and while watching television. Bilateral sloping hearing loss was found and his pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 55 LEFT 10 20 30 45 75 The average puretone threshold was 29 decibels for the right ear and 42 decibels for the left ear. On the Maryland CNC test, the Veteran received a score of 96 percent for the right ear and 94 percent for the left ear. The June 2009 results equate to an assignment of level I for each ear, which merits a noncompensable disability rating using Table VI. Table VIa is, as above, inapplicable as the Veteran does not have either (1) puretone thresholds of 55 decibels or more at each of the relevant frequencies or (2) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. The Veteran had a final VA audiological examination in April 2011. He reported significant occupational effects from his hearing loss due to his difficulty hearing other people in everyday conversation. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 20 25 75 LEFT 25 35 45 55 85 The average puretone threshold for the Veteran's right ear was 36.25 decibels, and the average puretone threshold in the Veteran's left ear was 55 decibels. On the Maryland CNC test, the Veteran received a score of 94 percent for the right ear and 96 percent for the left ear. The April 2011 results equate to an assignment of level I for the Veteran's right ear and level I for his left ear, which merits a noncompensable disability rating using Table VI. Table VIa is again inapplicable. See 38 C.F.R. § 4.86. The Veteran has alleged that the degree of damage to his ears sustained in service warrants a higher rating. However, the rating criteria for hearing loss contemplate a degree of functional difficulty due to demonstrable hearing loss, even in the hearing levels assigned a noncompensable rating, and the award of service connection for hearing loss acknowledges that the Veteran suffers from hearing loss due to damage to his ears sustained in service due to noise exposure. When rating hearing loss, the rating schedule relies primarily on the application of objective test data. 38 C.F.R. §§ 4.85, 4.86; Martinak, 21 Vet. App. at 455. As such, while the Board acknowledges the significance of the impairment experienced by the Veteran, his described symptomatology does not alter the Board's rating assignment of a noncompensable rating. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). The rating schedule represents as far as is practicable the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's bilateral hearing loss (i.e., conversational difficulty, difficulty hearing the television, and difficulty hearing in the presence of background noise) are not shown to cause any impairment that is not already contemplated by 38 C.F.R. § 4.85. The rating schedule specifically allocates a noncompensable rating for levels of hearing that are acknowledged to be disabling, thereby accounting for a degree of occupational impairment. See 38 C.F.R. § 4.10. Therefore, the Board finds that the rating criteria reasonably describe the disability and functional impairment caused by the Veteran's bilateral hearing loss and referral for consideration of an extraschedular rating is not warranted. ORDER Service connection for tinnitus is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs