Citation Nr: 1301745 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-35 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 2. Entitlement to an initial compensable rating for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to December 1989, and October 2003 to April 2006. This case is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction over the case was subsequently transferred to the RO in North Little Rock, Arkansas. The Veteran was scheduled for a hearing before the Board at the RO in October 2010; he failed to report for the hearing and has not requested that it be rescheduled. In addition to the paper claims files, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Throughout the period of the appeal, the Veteran's recurrent tinnitus has been perceived bilaterally. 2. The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus, whether it is perceived in one ear or both ears; factors warranting extra-schedular consideration are not shown. 3. Throughout the period of the appeal, the Veteran's service-connected bilateral hearing loss disability has been manifested by no worse than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The Veteran's tinnitus is properly evaluated as 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.87, Diagnostic Code 6260 (2012). 2. The criteria for an initial compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 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. § 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). Regarding the matters at hand, the appeal is from the initial ratings assigned with awards of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. See Dingess/Hartman, 19 Vet. App. 473, 490-91 (2006). The Veteran is exercising his right to appeal the ratings assigned. A September 2009 statement of the case (SOC) properly provided the Veteran with notice of the criteria for rating tinnitus and hearing loss disability, and further notice on the downstream issue of an increased initial rating, including of what the evidence showed, and why the current ratings were assigned. The Veteran has had opportunity to respond. He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claims. The Board is also unaware of any such records. Moreover, the Veteran has been afforded appropriate and adequate VA examinations, as is discussed below. Therefore, the Board concludes that VA has complied with its duty to assist the Veteran. Increased Ratings - Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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 the claims. Tinnitus Under the governing criteria (38 C.F.R. § 4.87, Diagnostic Code 6260), recurrent tinnitus warrants a 10 percent rating. Note (1) following Diagnostic Code 6260 states that a separate evaluation for tinnitus may be combined with an evaluation under Code 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. Note (2) provides that only a single evaluation for recurrent tinnitus will be assigned, whether the sound is perceived in one ear, both ears, or in the head. Note (3) states that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not to be evaluated under Diagnostic Code 6260 but is to be evaluated as part of any underlying condition causing it. 38 C.F.R. § 4.87, Diagnostic Code 6260. In November 2007, the Veteran submitted a claim (in pertinent part) seeking service connection for tinnitus. A December 2008 VA contract examination report notes the Veteran's complaints of ringing in both ears since being exposed to acoustic trauma from weapons in service. The examiner opined that the Veteran's tinnitus is at least as likely related to his noise exposure in service. A January 2009 rating decision (in pertinent part) granted service connection for tinnitus, and assigned a 10 percent rating effective November 19, 2007. In a February 2009 notice of disagreement (NOD), the Veteran stated that his tinnitus prevented him from understanding normal conversation in any situation where background noise was present. On VA examination in April 2009, the examiner found that the Veteran suffers from constant bilateral tinnitus. The Veteran indicated that his tinnitus was not bothersome for activities of daily living. The governing regulation cited above is clear and unambiguous. It precludes a schedular rating for tinnitus in excess of 10 percent, and specifically prohibits separate 10 percent ratings for tinnitus in each ear. As the disposition of this claim is based on interpretation and application of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 38 C.F.R. § 3.321(b)(1) applies when the rating schedule is inadequate to compensate for the average impairment of earning capacity for a particular disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran's ringing in his ears form the exact basis of the criteria in the rating schedule. The competent evidence does not that the disability at issue causes marked interference with employment, requires frequent hospitalizations, or otherwise produces impairment unrecognized by the schedule. Thus, the Veteran's 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 extraschedular consideration is not warranted. Hearing Loss Disability Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). 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). In November 2007, the Veteran submitted a claim (in pertinent part) seeking service connection for hearing loss disability. A December 2008 VA contract examination report notes the Veteran's complaints of difficulty hearing normal conversation. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 25 30 30 LEFT 35 25 30 30 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 92 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I designation for the left ear. Application of a Level I designation to a Level I designation in Table VII results in a noncompensable rating. The examiner opined that the Veteran's bilateral hearing loss disability is at least as likely related to his noise exposure in service. A January 2009 rating decision (in pertinent part) granted service connection for bilateral hearing loss disability, and assigned a noncompensable rating effective November 19, 2007. On VA examination in April 2009, the Veteran complained of difficulty hearing the television and hearing in crowds. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 30 30 LEFT 35 40 40 40 35 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and a Level I designation for the left ear. Application of a Level I designation to a Level I designation in Table VII results in a noncompensable rating. Other medical evidence of record includes VA outpatient treatment records dated from 2007 which note that the Veteran wore hearing aids in both ears. The Veteran's bilateral hearing loss disability is evaluated as 0 percent disabling for the period of the appeal. On review of the record, it is evident the criteria for a compensable rating under Diagnostic Code 6100 are not met at any point during the appeal period. Although the audiological evaluations clearly show hearing loss, the hearing loss does not meet the compensable level under the rating schedule. Specifically, the medical evidence for the period of the appeal shows that the Veteran's service-connected bilateral hearing loss disability was manifested by no worse than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. Applying these results to the Table VII chart, a Level I for the right ear, combined with a Level I for the left ear, will result in a noncompensable (zero percent) compensation evaluation. Therefore, a noncompensable disability rating is applicable under the provisions of 38 C.F.R. § 4.85, Table VII, for the period of the appeal. Fenderson, supra. In addition, VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence provided by the Veteran in the form of his correspondence to VA and his comments to the examiners, in which he generally contends his disability should be rated higher than the current noncompensable rating. He has also noted specific complaints with his hearing, as noted above. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority. Martinak, supra. Whereas the Veteran's hearing loss disability has not been shown by medical or lay evidence to be worse than that measured during audiological evaluation, the lay evidence does not support a claim for a higher rating at any point during the period of the appeal. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. A level of hearing loss, which he has described as affecting his ability to hear normal conversation and the television, and his ability to hear in crowds, is specifically contemplated by the schedule. The competent evidence does not that the disability at issue causes marked interference with employment, requires frequent hospitalizations, or otherwise produces impairment unrecognized by the Schedule. Thus, the Veteran's 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 extraschedular consideration is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an initial compensable rating bilateral hearing loss disability is denied. ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs