Citation Nr: 1301398	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  11-16 048	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 10 percent for tinnitus.

2.  Entitlement to an initial compensable disability evaluation for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from April 1953 to August 1958 and from September 1958 to September 1962.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 

The Veteran testified before the undersigned Veterans Law Judge at a November 2012 videoconference hearing, and a transcript of this hearing is of record.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's tinnitus is assigned the maximum schedular rating for the entire period on appeal, and there is no evidence that his disability is so exceptional or unusual as to warrant referral for extraschedular consideration.

2.  The Veteran has at worst, Level IV hearing in the right ear and Level II hearing in the left ear.  

CONCLUSIONS OF LAW

1.  There is no legal basis for the assignment of an initial disability evaluation in excess of 10 percent for tinnitus for any period on appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.87, Diagnostic Code 6260 (2012).

2.  The criteria for entitlement to an initial compensable disability evaluation for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85 Diagnostic Code 6100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.  

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 claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  


Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012).  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.

Tinnitus

The Veteran was granted entitlement to service connection for bilateral tinnitus in a June 2010 RO decision and assigned an initial 10 percent disability rating, effective March 2009.  

Tinnitus is evaluated under Diagnostic Code 6260, which provides a 10 percent disability rating for recurrent tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260. Note (2) following Diagnostic Code 6260 further explains that the Board must assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 

The Federal Circuit affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Citing U.S. Supreme Court precedent, the Federal Circuit explained in Smith that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations.  Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the Veterans Court had erred in not deferring to VA's interpretation. 

At his November 2012 hearing, it was explained to the Veteran that 10 percent was the maximum schedular evaluation for tinnitus and he stated that he was okay with this, although he did not formally withdraw the issue.  The Veteran did not argue that he was entitled to a higher rating on an extraschedular basis.  

In view of the foregoing, the Board concludes that the regulations preclude a schedular evaluation in excess of a single 10 percent rating for tinnitus.  Therefore, the Veteran's claim for a disability rating greater than 10 percent for tinnitus must be denied under Diagnostic Code 6260, Note 2.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Hearing Loss

The Veteran was originally granted service connection for bilateral hearing loss in a June 2010 rating decision, effective March 2009, and assigned an initial non-compensable evaluation.  In March 2011, the Veteran filed a notice of disagreement with this initial evaluation.  The Veteran has complained of progressively worsening hearing loss since his military service, which currently requires the continuous use of bilateral hearing aids.  

Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz.  38 C.F.R. § 4.85, Diagnostic Code 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.  Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters.  Id.  Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear.  Id.  Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I rating purposes.  Id.  

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2012).  Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz , and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level 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 Level.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(b) (2012).

Of record are results from VA compensation examinations from May 2010 and April 2012.  

The May 2010 examination yielded test results of puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 45, 70, 75, and 75 decibels, respectively, for an average over the four frequencies of interest of 66.25 decibels.  Test results of puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz of 15, 45, 65, and 75 decibels, respectively, for an average over the four frequencies of interest of 50 decibels.  Speech audiometry test results revealed speech recognition ability of 84 percent in the right ear and 86 percent in the left ear.  These results show that the Veteran does not have exceptional hearing loss in the either ear as contemplated in 38 C.F.R. § 4.86.  

Application of 38 C.F.R. § 4.85 Table VI to the May 2010 measurements results in assignment of Roman Numeral III to the right ear and Roman Numeral II to the left ear, for the purpose of determining a disability rating.  A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II with column III.

Additional VA testing was performed in April 2012.  The April 2012 examination yielded test results of puretone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz of 45, 70, 75, and 70 decibels, respectively, for an average over the four frequencies of interest of 65 decibels.  Puretone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz were 25, 45, 65, and 65 decibels, respectively, for an average over the four frequencies of interest of 50 decibels.  Speech audiometry test results revealed speech recognition ability of 80 percent in the right ear and 90 percent in the left ear.  These results show that the Veteran does not have exceptional hearing impairment in either ear as contemplated in 38 C.F.R. § 4.86.  

Application of 38 C.F.R. § 4.85 Table VI to the April 2012 measurements results in assignment of Roman Numeral IV to the right ear and Roman Numeral II to the left ear, for the purpose of determining a disability rating.  A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row II with column IV.

The May 2010 and April 2012 audiological test results do not provide for the assignment of a compensable disability rating for the Veteran's bilateral hearing loss.  

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court 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, 21 Vet. App. at 455.  Here, the VA examiners did this, noting that the Veteran has difficulty hearing normal conversational speech, difficulty hearing some environmental sounds, and difficulty hearing on the telephone.  These limitations result in functional impairment in both the Veteran's usual occupation and his activities of daily living.  

At his November 2012 hearing, the Veteran claimed that the audiological tests administered by VA were not accurate because his constant bilateral tinnitus was interfering with his ability to hear the test tones.  However, even assuming this is true, the Veteran would presumably do poorly on his audiological examination if he could not hear the test tones and any inaccuracies would only benefit the Veteran, making his hearing acuity appear worse than it actually is.  Furthermore, both VA examination show good speech recognition scores and the April 2012 VA examiner noted in her report that the examination results were valid for rating purposes, reflecting that a medical professional considered the results an accurate reflection of the Veteran's hearing acuity.  Thus, considering all the evidence of record, it is unclear that the Veteran's constant bilateral tinnitus interferes with his puretone audiological test results, and even if it does, as noted above, such interference would presumably benefit the Veteran.  Accordingly, the Board finds that the VA examinations are adequate for rating purposes.  

Also of record is a private audiogram from September 2009 from Lamar University Audiology.  Unfortunately, the results of this examination are in graphical form.  The Board observes that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that the Court itself could not interpret the results of an audiograph because interpretation required a factual finding, which is not the role of the Court in the first instance.  However, the Board, as the finder of fact, is empowered to make factual findings in the first instance.  In this regard, the Board has considered whether clarification of the examination results is necessary; however, while precise puretone threshold values cannot be obtained from the graph, it is possible to estimate the approximate values.  These are similar to the values obtained by the VA examiner in May 2010 and April 2012, and thus would not support a compensable disability rating.  Accordingly, a remand for clarification of the September 2009 test results would not assist the Veteran's claim in any way.  Further, if the Maryland CNC test was administered at that time, the results are not of record.  Thus, because the private audiological examination the Veteran has submitted does not conform to the requirements of the rating criteria, the Board finds that it has little probative value. 

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his tinnitus and hearing loss.  The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severe than the assigned disability ratings reflect.  Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

In conclusion, the results from the audiological testing do not provide for assigning a compensable evaluation for the Veteran's bilateral hearing loss.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Extraschedular

Finally, the Board has also considered whether the Veteran's disabilities warrant referral for extraschedular consideration.  To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R.  § 3.321(b)(1) (2012).

The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R.  § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

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).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

In this case, it does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment.  Specifically, the Veteran has complained he should receive higher compensation because his hearing loss prevented him from serving longer in the military, limiting his retirement benefits.  However, he does not have any symptoms from his service-connected hearing loss and tinnitus that are unusual or are different from those contemplated by the schedular criteria.  Therefore, no referral for extraschedular consideration is required and no further analysis is in order.

For all the above reasons, entitlement to higher disability evaluation for service connected tinnitus and bilateral hearing loss is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).


The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This 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 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

VA also has a duty to assist the veteran in the development of the claim.  This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The RO has obtained the Veteran's service treatment records, as well as VA treatment records.  The Veteran submitted private treatment records and was provided an opportunity to set forth his contentions during the November 2012 videoconference hearing before the undersigned Veterans Law Judge.  The appellant was afforded VA audiological examinations in May 2010 and April 2012.  

These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disabilities as well as the functional impairments resulting therefrom.  These examination reports are adequate for rating purposes.  See 38 C.F.R. § 4.2.  Since the April 2012 examination, there is no lay or medical evidence suggesting an increased severity of disability.  As such, additional examination is not warranted. VAOPGCPREC 11-95 (Apr. 7, 1995).

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


ORDER

Entitlement to an initial disability evaluation in excess of 10 percent for tinnitus is denied.  

Entitlement to an initial compensable disability evaluation for bilateral hearing loss is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs