Citation Nr: 1302969 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 10-40 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial compensable rating for the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis Missouri. The RO granted service connection for bilateral hearing loss and assigned an initial noncompensable disability rating, effective from April 28, 2009. The RO also denied claims of service connection for tinnitus and a skin condition. The Veteran timely perfected appeals as to the issues of entitlement to an initial compensable rating for the service connected bilateral hearing loss and entitlement to service connection for tinnitus. The Veteran elected not to perfect an appeal as to the issue of service connection for a skin condition; therefore, only the issues of entitlement to service connection for tinnitus, and entitlement to a compensable rating for the service-connected hearing loss are on appeal and before the Board at this time. In addition to the paper claims file, 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 file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The competent and probative evidence of record is credible, and establishes that the Veteran has recurrent tinnitus that began during service and has continued since service. 2. Throughout the period of the appeal, the Veteran's numeric designation of hearing impairment based on pure tone threshold average and speech discrimination scores (Table VI) and/or based on pure tone threshold average only (Table VIa) is no worse than Level I hearing in the left ear and no worse than Level V hearing in the right ear corresponding to a 0 percent rating when applied to Table VII at 38 C.F.R. § 4.85. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. The criteria for an initial compensable rating for the service-connected bilateral hearing loss disability have not been met during any time period covered by this claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The grant of service connection for tinnitus constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim of service connection for tinnitus is harmless error, and no further discussion of VA's duty to notify and assist is necessary. With regard to the claim of entitlement to an initial compensable rating for the service-connected hearing loss, notice of the underlying service connection claim was provided to the Veteran in May 2009, prior to the initial adjudication of the claim of service-connection for hearing loss. That letter provided notice of all five elements of a service connection claim, including notice of how VA assigns disability ratings and effective dates for all grants of service connection. With regard to the increased rating claim, here, the Veteran is challenging the initial rating assigned following the grant of service connection. 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. 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, additional notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has obtained service treatment records, assisted the Veteran in obtaining evidence to the extent possible, afforded the Veteran a physical examination, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. In this regard, the Veteran maintains that there are outstanding private records from the 1980's which would provide evidence of the extent of his hearing loss dating back to that time period. Although these records may potentially show a hearing loss disability at that time, the matter before the Board involves whether an initial compensable rating is warranted as of April 28, 2009 (the effective date of service connection), and this time period is long after the date of the records identified by the Veteran from the 1980's. Thus, any records dated in the 1980's showing a hearing loss disability at that time, are deemed irrelevant as to the current claim on appeal. Also, the Veteran maintains that his audiogram results, obtained at a VA examination in March 2010, are inaccurate. However, the Veteran provided no clear reasons as to why the findings on examination were "not completely accurate" with regard to the severity of his hearing loss disability. There is neither an indication that the examination results were inconsistent with other findings, nor any indication that the testing was not valid for rating purposes. Furthermore, the Veteran has not specifically reported that his hearing loss has worsened since the March 2010 examination. For all of these reasons, there is no basis on which to find the VA March 2010 examination inadequate. As such, there is no basis on which to administer another audiometric examination prior to the disposition of this appeal. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected and once established for a secondary condition, the secondary condition shall be considered part of the original condition. This is secondary service connection. 38 C.F.R. § 3.310(a). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. The Veteran maintains that he has tinnitus which began during service as a result of in-service acoustic trauma. In-service noise exposure was established in conjunction with the Veteran's claim of service connection for hearing loss, and it is therefore conceded with respect to this claim. With regard to the claim of service connection for tinnitus, the Veteran reported in a June 2009 statement that his ears started ringing during basic training, but he didn't report it at that time. A VA examination report of March 2010 notes, however, that the Veteran denied ever having tinnitus and did not currently complain of tinnitus. The examiner, however, also noted that the Veteran's tinnitus was as likely as not a symptom that was associated with his hearing loss. The examiner concluded that the Veteran's tinnitus was not a result of in-service noise exposure because he did not report tinnitus on examination or at any time in the past. On the Veteran's September 2010 VA Form 9, substantive appeal to the Board, he clarified that the VA audiologist who administered the March 2010 examination must have misunderstood him regarding the ringing in his ears (tinnitus), because he did, in fact have ringing in his ears. It is possible that the Veteran, when asked about tinnitus, did not equate this term with "ringing in the ears" at the time of the examination. More importantly, tinnitus, or ringing in the ears, is the type of disability capable of lay observation and diagnosis as the symptom of ringing in the ears is readily identifiable to the lay person. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Furthermore, there is no reason to doubt the Veteran's credibility with regard to his statement that he first developed tinnitus in service, and that he has experienced recurrent tinnitus since that time. Although there are no documented complaints of tinnitus during the many years between discharge from service and 2009, the Board finds the Veteran credible. His history of noise exposure is consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). As such, the Veteran's statements regarding the onset and continuity of his tinnitus are highly probative. In sum, it has already been established that the Veteran was exposed to excessive noise in service; and, the Veteran has provided competent and credible statements regarding the onset of tinnitus and continuity of symptoms since service. Although the service treatment records do not show complaints of tinnitus at that time, it does not necessarily mean that the tinnitus did not exist. Based on these findings, as well as the medical evidence linking tinnitus to his service-connected hearing loss, the criteria for establishing service connection for tinnitus are met in this case. II. Increased Rating - hearing loss The Veteran maintains that a compensable rating is warranted for his service-connected hearing loss since the effective date of service connection. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Since the initial grant of service connection, the Veteran's hearing loss has been assigned a 0 percent (noncompensable) disability rating. In cases such as this, where the Veteran appeals the initial rating assigned for a service-connected disability, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). 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); 38 C.F.R. §§ 3.102, 4.3 (2006). The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. This average is used in all cases (including those in Sec. 4.86) to determine the Roman numeral designation for hearing impairment where the axes intersect. Average pure tone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100. To warrant the assignment of a compensable rating for bilateral hearing loss, the evidence must show that the hearing loss rises to the requisite level of severity as proscribed in 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. Additionally, for exceptional patterns of hearing, under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or higher, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa of 38 C.F.R. § 4.85, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the 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 is then elevated to the next higher Roman numeral. Again, each ear will be evaluated separately. 38 C.F.R. § 4.86(b). At a VA examination in March 2010, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 75 65 70 LEFT 20 35 65 80 The average in the right ear was 58 and the average in the left ear was 50. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 92 percent in the left ear. These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level III hearing in the right ear and Level I hearing in the left ear. Application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating. Importantly, however, the above audiogram findings show an exceptional pattern of hearing loss in the right ear, as defined under 38 C.F.R. § 4.86(a) based on the puretone threshold of 20 at 1000 Hertz and then jumping to 75 at 2000 Hertz. According to 38 C.F.R. § 4.86(a), when the pure tone threshold is 30 decibels or less at 1000 Hertz (20 in this case) and 70 decibels or more at 2000 Hertz (75 in this case), 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 is then elevated to the next higher Roman numeral. As noted above, the Roman numeral designation for hearing impairment under Table VI is III. When the figures are applied to 38 C.F.R. § 4.85, Table VIA, the Roman numeral designation for the right ear is IV. This Roman numeral IV is then elevated to the next higher level of V. As the exceptional pattern of hearing is not shown in the left ear, the application of Table VIa is not an option for the left ear. Thus, the Roman numeral designation for the left ear remains I. Application of these levels (V in the right ear and I in the left ear) to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating. Regardless of which Table (VI or VIa) is used in this case, the outcome remains the same, and in either case, results in a 0 percent rating. There is no other competent medical evidence of record to compare with the above findings, and no other contradictory evidence of record, other than the Veteran's contentions that his hearing loss is not accurately rated. While the Veteran is certainly competent to report his symptom of hearing loss, as well as his functional occupational impairment, which he has described as difficulty understanding speech in noise, the medical findings on audiogram demonstrate that a compensable rating is not warranted for the service-connected hearing loss in this case. The Veteran has not reported that his hearing loss has worsened during the course of the appeal. In light of these findings, a compensable rating is not warranted for the service-connected bilateral hearing loss at any time during the period of time covered by this claim. 38 C.F.R. § 4.85, Diagnostic Code 6100. The possibility of staged ratings was considered, however, there are no distinct periods of time where a compensable rating could be assigned based on the evidence of record. With regard to the Veteran's reported significant effects on occupational functioning in terms of difficulty understanding speech in noise, there is no question that the Veteran has difficulty hearing, and that his hearing loss is service-connected, but the level of loss represented throughout the course of this appeal is noncompensable according to the rating schedule. The Veteran's diagnosis on examination was bilateral mild to severe sensorineural hearing loss with mildly reduced word recognition. Thus, reduced word recognition is recognized in the testing environment, but it was not deemed significant enough to warrant a compensable rating when applied to the rating formula in conjunction with the average puretone threshold. In reaching this decision, the Veteran's contentions regarding the severity of his hearing loss have been considered. There is no reason to doubt the credibility of the Veteran with respect to the fact that he has difficulty hearing. The findings on examination are consistent with the Veteran's assertions that he has difficulty hearing. The objective findings on examination, however, do not allow for the assignment of a compensable rating in this case. The Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case. Although unfortunate, the numeric designations in this case correlate to no higher than a 0 percent disability rating. See 38 C.F.R. § 4.85, Tables VI-VII. The preponderance of the evidence is against the claim for a compensable disability rating for the service-connected hearing loss; thus, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. III. Extra Schedular Consideration Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the symptomatology and impairment caused by the Veteran's service-connected hearing loss are contemplated by the rating criteria for hearing loss. Other than the Veteran's tinnitus, which is now service-connected pursuant to this decision, there is no symptom or manifestation stemming from the hearing loss that is not currently considered in the rating criteria for rating the hearing loss. The Veteran has not described any other manifestation of the ears other than hearing loss and ringing of the ears, and there is no evidence of any ear disease. All of the Veteran's symptoms and manifestations have been considered based on all available rating criteria pertinent to the ears. In this case, comparing the Veteran's disability level and symptomatology of the hearing loss alone, to the rating schedule, the degree of disability throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the hearing loss, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. As such, referral for consideration for an extraschedular evaluation is not warranted here. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER Service connection for tinnitus is granted. A compensable rating for the service-connected hearing loss is denied. __________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs