Citation Nr: 1301934 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 11-18 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a disorder manifested by a lack of balance, originally claimed as vertigo, to include as secondary to service-connected hearing loss. 2. Entitlement to an initial evaluation in excess of 10 percent for hearing loss. 3. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and November 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before the undersigned during a Board hearing held in March 2012. A copy of the hearing transcript has been associated with the 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). The issues of entitlement to service connection for a disorder manifested by lack of balance, originally claimed as vertigo, to include as secondary to service-connected hearing loss, and entitlement to an initial evaluation in excess of 10 percent for hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran's service-connected tinnitus has been assigned the maximum 10 percent schedular rating available under Diagnostic Code 6260 for the entire initial rating period on appeal. CONCLUSION OF LAW There is no legal basis for the assignment of an initial disability rating in excess of 10 percent for tinnitus. 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). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in July 2010 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in September 2010. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. The Veteran is challenging the initial evaluation assigned following the grant of service connection for tinnitus. In Dingess, the United States Court of Appeals for Veterans Claims (Veterans Court) held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91; also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. As for the duty to assist, the Veteran's service treatment records have been obtained. Pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. During the Veteran's March 2012 Board hearing, he did not identify any outstanding VA treatment records pertaining to the claim decided herein. The Veteran testified that he was in receipt of Social Security Administration (SSA) pension benefits (see Transcript, p. 7); however, at no time did the Veteran state that he was in receipt of SSA disability benefits. As such, the Board is not on notice that relevant, outstanding SSA disability records exist in this case, and the duty to assist does not require the Board to obtain SSA records prior to adjudication of the claim at issue. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The Board therefore finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was afforded a VA examination to address his tinnitus claim in August 2010. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate to decide the claim addressed in this section, as the examination reports included a thorough review of the file, as well as examination findings relevant to the issue at hand. Finally, a discussion of the Veteran's March 2012 Travel Board hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to an increased rating for tinnitus was identified as an issue at the hearing. Discussion ensued as to the nature and severity of his tinnitus symptoms and how his disorder affected his activities of daily living. Sources of evidence relevant in this regard were identified during this process. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating In this case, the Veteran contends that the initial disability rating for his bilateral tinnitus should be evaluated in excess of 10 percent, although 10 percent is the maximum schedular rating for tinnitus. 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 United States Court of Appeals for the Federal Circuit (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. See 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. The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his tinnitus have been accurately reflected by the schedular criteria. Thus, without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether any disability on appeal requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). 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. As disposition of this appeal is based on the law and not the facts of the case, the appeal must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied. REMAND Although the Board regrets any further delay in adjudicating the Veteran's remaining claims, pursuant to the duty to assist, the issues of entitlement to service connection for a disorder manifested by lack of balance, originally claimed as vertigo, to include as secondary to service-connected hearing loss, and entitlement to an initial rating in excess of 10 percent for bilateral hearing loss, must be remanded for further development. Regarding the Veteran's service connection claim, the Board notes that the Veteran claimed entitlement to service connection for vertigo as secondary to now-service-connected hearing loss. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here, the Veteran was afforded a VA examination in conjunction with his claim in October 2010. At that time, the Veteran complained of an onset of vertigo which occurred several years after separation from active service. On examination, there was no active ear disease found. Per the examiner, the explosive episodes of vertigo that the Veteran described, now absent, were consistent with a diagnosis of peripheral vestibular disease. The examiner noted that this disorder had its onset following separation. It was further noted that Meniere's disease was "not applicable." The Veteran's representative, per the August 2012 Informal Hearing Presentation, noted that the Veteran testified before the Board in March 2012 that he had vertigo attacks for four to five years. It was further noted that, during his October 2010 VA examination, the Veteran reported that he had been free of dizziness for the last seven to eight years. However, the Veteran maintains that his balance, which is separate from his symptoms of dizziness, remains affected. It was further argued that, during his period of active duty, the Veteran's balance problem prevented him from standing at attention, and that he was unable to balance on one foot for two seconds. The Veteran also stated that he was unable to close his eyes and maintain his equilibrium, and that he was currently unable to walk in a straight line due to this disorder. While he no longer suffered from vertigo attacks, his sense of balance continued to deteriorate, and was constant. As such, the Veteran's representative requested an additional VA examination pursuant to Diagnostic Code 6205 for Meniere's syndrome. The Board notes that the October 2010 VA examiner indicated that Meniere's syndrome was "not applicable," presumably because no active ear disease was found on examination. However, that would not preclude service connection if a current disorder manifested by a lack of balance, and opposed to dizziness, was found. The Veteran's representative further argued that the Veteran's loss of balance may be directly linked to his service-connected hearing loss, and that his statements provide continuity of symptomatology since his period of active service. Based upon this consideration, as well as the "conclusory" statement which indicated that Meniere's syndrome was not applicable, the Veteran's representative contends that an additional VA examination is warranted in this case. The Board has determined that the Veteran should be afforded an additional examination, and that the examiner must consider his lay statements regarding a lack of balance since his period of active service. Further, the examiner must determine whether the Veteran's current lack of balance is etiologically-related to a service-connected disability, to include whether the Veteran's purported lack of balance was aggravated beyond its normal progression by the Veteran's sensorineural hearing loss. As to his increased rating claim, the Board notes that the Veteran has claimed, through his representative in an Informal Hearing Presentation dated in August 2012, that his service-connected hearing loss has worsened since his most recent VA examination was conducted in August 2010. VA's "duty to assist" requires a "thorough and contemporaneous medical examination" that is sufficient to ascertain the current level of disability. Floyd v. Brown, 9 Vet. App. 88, 93 (1995). As such, his claim for service connection, as well as his increased rating claim, must be remanded for a current, pertinent VA examination or examinations to provide findings that are consistent with applicable rating criteria, to include all necessary testing, so as to accurately rate his service-connected disability and to discern the etiology of any current balance disorder, to include whether it was aggravated beyond normal progression by a service-connected disability. The medical examination(s) must consider the records of prior medical treatment in order to assure a fully informed decision. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Copies of updated treatment records should be obtained and added to the claims folder. 2. The RO/AMC shall schedule the Veteran for a VA audiological examination in order to determine the current severity of his service-connected sensorineural hearing loss. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should reflect that such a review was completed. The examiner should specifically describe the effects of the Veteran's hearing loss on his occupational functioning and activities of daily life. The examiner should also to assess the nature and etiology of any currently-diagnosed balance disorder. The Veteran's claims folder must be made available to the examiner for review. The examiner shall specifically note a review of the Veteran's service treatment records, as well as his lay statements which indicate symptoms of a balance disorder since his period of active duty, and comment on the significance of such. The examiner shall provide an opinion as to the following: Whether it is at least as likely as not that any currently-diagnosed balance disorder is (a) related to service, (b) proximately due to or the result of his service-connected hearing loss (or any other currently-service-connected disability), or (c) aggravated or permanently worsened by a service-connected disability, to include hearing loss. If it is determined that a balance disorder is related to a service-connected disability, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Only if the VA audiological examiner is unable to provide an opinion as the etiology of any currently-diagnosed balance disorder, the RO/AMC shall schedule the Veteran for a VA examination in the appropriate specialty to assess the nature and etiology of any currently-diagnosed balance disorder. The Veteran's claims folder must be made available to the examiner for review, and the examination report should reflect that such a review was conducted. The examiner shall specifically note a review of the Veteran's service treatment records, as well as his lay statements which indicate symptoms of a balance disorder since his period of active duty, and comment on the significance of such. The examiner(s) shall provide an opinion as to the following: Whether it is at least as likely as not that any currently-diagnosed balance disorder is (a) related to service, (b) proximately due to or the result of his service-connected hearing loss (or any other currently-service-connected disability), or (c) aggravated or permanently worsened by a service-connected disability, to include hearing loss. If it is determined that a balance disorder is related to a service-connected disability, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After undertaking any other development deemed appropriate, readjudicate the claims on appeal. If any issue remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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 are 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs