Citation Nr: 1300387	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  08-08 465	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

1.  Entitlement to an increased (compensable) rating for bilateral hearing loss

2.  Entitlement to an increased (compensable) rating for tinnitus


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jennifer Hwa, Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to November 1976.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased (compensable) rating for bilateral hearing loss.  In September 2009, the Veteran filed a Notice of Disagreement.  The RO furnished the Veteran a Statement of the Case in March 2008; and later that month the Veteran filed a Substantive Appeal (VA Form 9).

In April 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.

In June 2011 and September 2011, the Board remanded the case for further evidentiary development.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 

The issue of entitlement to a rating in excess of 10 percent for tinnitus on an extra-schedular basis 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.


FINDING OF FACT

The Veteran's hearing loss has been no worse than Level III hearing loss in the right ear and Level I hearing loss in the left ear.


CONCLUSION OF LAW

The criteria for an increased (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 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

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 & Supp. 2012)) redefined VA's duty to assist a claimant 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) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA 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, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

The Veteran was provided VCAA notice in June 2007 and June 2008 letters.  These letters collectively advised the Veteran of what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letters also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment.  The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").  The letters further advised the Veteran of how effective dates are assigned, and the type of evidence which impacts those determinations.  The claim was last readjudicated in October 2012.

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, VA and private treatment records, VA examination reports, lay statements, and hearing testimony.

Additionally, the prior remand instructions were substantially complied with.  Instructions pertinent to the claim being decided included scheduling the Veteran for a VA examination.  In response, the RO/AMC scheduled the Veteran for a November 2011 VA examination.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

As discussed above, the VCAA provisions have been considered and complied with.  The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

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 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting 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, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings.

The Board has reviewed all of the evidence in the Veteran's claims file.  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 the claim and what the evidence in the claims file shows, or fails to show, with respect to the 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).

Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Code 6100 (2012).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2012).  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be considered separately.  38 C.F.R. § 4.86(b).  

The Veteran was afforded a VA audiological examination in November 2006.  He reported a gradual decrease in hearing in both ears during the past 20 years.  An audiogram showed pure tone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
15
10
70
70
41
LEFT
10
40
60
75
46

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  The examiner's impression was that the Veteran had normal hearing sensitivity sloping to a moderately severe sensorineural hearing loss in the right ear and normal hearing sensitivity sloping to a severe sensorineural hearing loss in the left ear.

Applying the results from the November 2006 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.  

The Veteran was afforded another VA audiological examination in July 2007.  He reported a gradual decrease in hearing in both ears during the past 20 years and indicated that he thought his hearing was getting worse.  An audiogram showed pure tone thresholds, in decibels, were as follows:




HERTZ


1000
2000
3000
4000
Avg.
RIGHT
10
15
70
70
41
LEFT
10
40
60
75
46

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  In the right ear, the Veteran was found to have normal hearing from 500 to 2000 Hz and a moderately severe rising to moderate sensorineural hearing loss from 3000 to 4000 Hz.  In the left ear, the Veteran was found to have normal hearing from 500 to 1500 Hz and a mild to severe sensorineural hearing loss from 2000 to 4000 Hz.

Applying the results from the July 2007 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.  

The Veteran underwent a private audiological examination in August 2007.  He reported having considerable difficulty in understanding speech when there was background noise present.  An audiogram showed pure tone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
40
45
110
105
75
LEFT
30
45
65
80
55

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 96 percent in the left ear.  The audiologist's impression was that the Veteran had mild to profound sensorineural hearing loss in the right ear and mild to moderate to severe sensorineural hearing loss in the left ear.

Applying the results from the August 2007 private examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level III in one ear and Level I in the other, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.  

The Veteran was afforded another VA audiological examination in November 2011.  He reported that his hearing loss impacted the ordinary conditions of daily life, including the ability to work.  He indicated that he had difficulty communicating in social and employment situations.  An audiogram showed pure tone thresholds, in decibels, were as follows:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
15
20
70
70
44
LEFT
15
50
70
80
54

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  The examiner's impression was that the Veteran had sensorineural hearing loss and found that the Veteran's moderate hearing loss combined with his excellent speech recognition ability would allow him to communicate effectively in most employment situations.   

Applying the results from the November 2011 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear.  Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII.  38 C.F.R. § 4.85.  

The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities.  In this case, the November 2006 and July 2007 VA examinations were conducted prior to the revision to the hearing worksheet.  However, the August 2007 private examination report and the November 2011 VA examiner's report included the reported effects of the Veteran's hearing loss on his occupational functioning and daily activities.  Thus, the Board finds that the above examinations are adequate for rating purposes and are entitled to great probative value.  

The Board sympathizes with the Veteran's complaints regarding the functional impact of his hearing loss on his daily life, but the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination.  The findings on examination are more probative than the lay contentions as to the extent of hearing loss.

The Board has also considered whether the Veteran's hearing loss presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

In summary, the competent medical evidence of record fails to demonstrate that a compensable rating is warranted for the Veteran's service-connected bilateral hearing loss.  

In reaching the above 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 in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  


ORDER

An increased (compensable) rating for bilateral hearing loss is denied.  


REMAND

With respect to the claim for an increased rating in excess of 10 percent for tinnitus on an extra-schedular basis, the Board previously remanded this matter (in June 2011 and September 2011) to the RO for further development and adjudication.

By way of clarification, the Board observes that the claim of entitlement to separate 10 percent ratings for tinnitus of each ear was denied in a Board decision of June 2007.  In that decision, the Board determined that the current single 10 percent rating for the tinnitus disability is the maximum schedular rating assignable under VA rating criteria, and thus concluded that there was no legal basis for the assignment of separate 10 percent ratings for tinnitus.  See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  The June 2007 Board decision constitutes a final appellate decision on that issue.  See 38 U.S.C.A. § 7104(a) (West 2002) (Unless the Chairman of the Board orders reconsideration, all Board decisions are final on the date stamped on the face of the decision); see also 38 U.S.C.A. §§ 511(a), 7103(a) (West 2002); 38 C.F.R. § 20.1100(a) (2012).

Subsequently, in correspondence received by the RO in June and September of 2007, and during the June 2011 Board hearing, the Veteran raised the matter concerning tinnitus and hyperacusis, which the Board construed as a new claim for increase on an extra-schedular basis.  Cf., 38 C.F.R. § 3.156(b) (2012) (This regulatory provision does not apply to evidence received after an appellate decision).  However, as the outcome of the tinnitus claim does not materially affect the result of the currently certified appeal on the issue concerning bilateral hearing loss, the tinnitus claim is separate and distinct from, and is not inextricably intertwined with, the appealed issue of entitlement to an increased (compensable) rating for bilateral hearing loss.  Hence, the Board inadvertently addressed the Veteran's claim concerning extra-schedular consideration for the service-connected tinnitus (including hyperacusis) in the context of two prior remands, as indicated above, rather than as an unadjudicated claim for increase, which, according to appropriate procedure, would warrant referral (and not remand) to the Agency of Original Jurisdiction (AOJ).

To remedy this procedural defect, and to ensure full compliance with due process requirements, the Board observes that VA initially considered and denied the claim of entitlement to an increased rating in excess of 10 percent for tinnitus on an extra-schedular basis in an August 2011 Supplemental Statement of Case (SOC), and in a February 2012 Administrative Decision rendered by the Director of Compensation Service.  As such, given the procedural posture of this particular issue, VA still remains obligated to provide the Veteran with proper written notice of these same adjudicative actions, even though the Veteran was furnished the August 2011 Supplemental SOC, for the purpose of allowing him to exercise his statutory right to initiate an appeal of the adjudicative actions announced in the February 2012 Administrative Decision (as well as in the August 2011 Supplemental SOC), by filing a notice of disagreement within the prescribed 1-year appeal period.  38 U.S.C.A. § 7105(c) (West 2002); see also, 38 C.F.R. § 19.30(a) (2012) (In no case will a Supplement SOC be used to announce decisions by the AOJ on issues not previously addressed in the SOC, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the SOC).  Accordingly, in the spirit of fair process, the discrete issue of entitlement to an increased rating in excess of 10 percent for tinnitus on an extra-schedule basis is REMANDED to the AOJ to provide the Veteran written notice of the February 2012 Administrative Decision and of his appellate rights with respect to that adverse determination.

The remanding of this issue (i.e., entitlement to an increased rating in excess of 10 percent for tinnitus on an extra-schedular basis) must not be read as acceptance of jurisdiction over the same by the Board.  The Board may only exercise jurisdiction over an issue after an Appellant has filed both a timely notice of disagreement, and a timely substantive appeal.  38 U.S.C.A. § 7105 (West 2002).  The AOJ should return this issue to the Board only if the Veteran initiates and completes his appeal in full accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. § 20.302 (2012).  

Accordingly, the case is REMANDED for the following action:

Provide the Veteran and his representative with a copy of the Administrative Decision, dated February 2012, by the Director of Compensation Service, which denied an increased rating in excess of 10 percent for tinnitus on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), and written notice of the determination.  The written notice must provide the Veteran with notice of his right to appeal.  If, and only if, the Veteran initiates an appeal of the February 2012 Administrative Decision and, following issuance of a Statement of the Case, completes the appeal by filing a timely substantive appeal, is the issue of entitlement to an increased rating in excess of 10 percent for tinnitus on an extra-schedular basis to be returned to the Board.

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 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. 2012).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs