Citation Nr: 1306380	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  12-31 030	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss.

2.  Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

James Alsup, Counsel



INTRODUCTION

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 Veteran served on active duty from September 1954 to September 1957.

This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for bilateral hearing loss and tinnitus and evaluated each disability as 10 percent disabling.  The Veteran disagreed and perfected an appeal. 


FINDINGS OF FACT

1.  The Veteran has between Level I and II hearing loss in the right ear and between Level VI and VII hearing loss in the left ear.

2.  The Veteran receives the schedular maximum of 10 percent for service-connected tinnitus. 
 

CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85 (2012).

2.  Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is not warranted.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6260 (2012); Sabonis v. Brown, 6 Vet. App. 426 (1994).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that his service-connected hearing loss and tinnitus warrant higher initial ratings.  The Board will first address preliminary matters and then render a decision on the issues on appeal.

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012).  

Both issues on appeal present issues of entitlement to an initial compensable disability rating for a service-connected.  The Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of notices provided by the RO.  Shinseki v. Sanders, 556 U.S. 396 (2009) (burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The record shows that the RO has obtained the Veteran's service treatment records, VA treatment records and the Veteran received VA audiological examinations in July 2010 and October 2012.  The examinations were adequate as they were based on a review of the history, an audiological examination, and because sufficient information was provided to allow the Board to render an informed determination.  The Veteran indicated in writing that he did not desire a hearing before a Veterans Law Judge.

For those reasons, the Board finds that VA satisfied its duties to assist and notify the Veteran.

Hearing Loss

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).  The Veteran's bilateral hearing loss is rated zero percent disabling under Diagnostic Code 6100.  

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  
One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Veteran's bilateral hearing loss is currently rated under 38 C.F.R. § 4.85, Diagnostic Code 6100 [hearing impairment] (2012).  Diagnostic Code 6100 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the Veteran's case (bilateral hearing loss).  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate and the Veteran has not requested that another diagnostic code be used.  Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 6100.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.  

The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 dB or more, 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.  Each ear will be evaluated separately.  The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1000 hertz, and 70 dB or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  

The Veteran seeks entitlement to a higher disability rating for his service-connected bilateral hearing loss, which is currently evaluated as 10 percent disabling.  As indicated above, the resolution of this issue involves determining the level of hearing acuity in each ear.

The pertinent evidence consists of July 2010 and October 2012 VA audiological examinations.  The Board will address both using the rating criteria described above.  

The July 2010 VA audiologist reported the following puretone thresholds:  




HERTZ


1000
2000
3000
4000
RIGHT
20
40
60
85
LEFT
15
85
90
90

The average decibel loss for the right ear was 51.25 and the average decibel loss for the left ear was 70.  Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 80 percent in the left ear.  

Applying these values to the rating criteria results in a numeric designation of level II in the right ear and level IV in the left ear.  This results in a noncompensable or zero percent disability rating under Table VII.  The examination results, however, demonstrate exceptional patterns of hearing impairment requiring consideration under 38 C.F.R. § 4.86(b) for the Veteran's left ear.  Hence, Table VIA provides a higher Level VI hearing loss.  Pursuant to 38 C.F.R. § 4.86(b), that numeral is elevated to the next higher Roman numeral, in this case, VII.  Applying the resulting values (II and VII) to the rating criteria results in a 10 percent disability rating under Table VII.  

October 2012 VA hearing test results included the following puretone thresholds:




HERTZ


1000
2000
3000
4000
RIGHT
15
30
60
85
LEFT
15
80
90
90

The average decibel loss for the right ear was 48 and 69 for the left ear.  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 76 percent in the left ear.  

Applying these values to the rating criteria results in a numeric designation of level I in the right ear and level IV in the left ear.  This results in a noncompensable or zero percent disability rating under Table VII.  As above, the examination results also demonstrate exceptional patterns of hearing impairment in the left ear requiring consideration under 38 C.F.R. § 4.86(b).  Hence, Table VIA provides a higher Level V hearing loss.  Pursuant to 38 C.F.R. § 4.86(b), that numeral is elevated to the next higher Roman numeral, in this case, VI.  Applying those results (I and VI) to Table VII, a noncompensable disability rating would result.  

The Board notes that the Veteran reported in his claim for an increased rating that his hearing has gotten worse over time and also observes that he is competent as a lay witness to state what hearing symptoms he currently experiences.  See, for example, Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The Veteran stated in a May 2010 statement that he has difficulty hearing his turn indicator in his car and trouble hearing his watch alarm.  The Veteran further told VA examiners that he had difficulty understanding normal conversation, phone conversations and that he has difficulty hearing television.  

The Board is sympathetic and does not doubt that the Veteran has the problems he reported.  Indeed, having a loss of hearing acuity is required for service-connection.  The Board, however, must adjudicate this claim by mechanically applying the schedular criteria.   See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).   Furthermore, while the Veteran is competent to report that he experiences hearing loss, he is not competent to quantify the extent of the hearing loss in terms of decibels.  

In summary, based on the review of the entire record, the Board concludes that the criteria for an initial disability rating in excess of 10 percent for the Veteran's bilateral hearing loss have not been met.

Tinnitus

The Veteran's service-connected tinnitus has been rated under the criteria for rating recurrent tinnitus provided in 38 C.F.R. § 4.87, Diagnostic Code 6260.  As there is no other diagnostic code that addresses tinnitus symptoms, the Board finds that Diagnostic Code 6260 is the most appropriate diagnostic code.  The Veteran has not contended that another diagnostic code is more appropriate. 

Diagnostic Code 6260 provides a 10 percent disability rating for recurrent tinnitus.  That is the sole and highest disability rating provided for tinnitus under VA schedular regulations and the Veteran is already assigned a 10 percent rating.  

To the extent that the Veteran may be contending that because he has bilateral tinnitus he is entitled to a 10 percent disability for each ear, Diagnostic Code 6260 limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012).  As there is no legal basis upon which to award separate schedular ratings for tinnitus in each ear, or to award any higher rating, the Veteran's appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 

Once again, the Board is sympathetic to the Veteran's complaints that the ringing in his ears is frustrating and that he has difficulty "tuning it out."  However, it is specifically because of those impairments that the Veteran receives the 10 percent schedular rating.  The Veteran has not alleged anything unique about his tinnitus.

In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of "staging" ratings.  Essentially, the Court determined that in a case where a Veteran was initially assigned a disability rating, if the facts of the case supported findings for separate percentage evaluations for separate periods during the appeal period, the rating agency had authority to provide such staged ratings.  In this case, the Veteran has been evaluated with a 10 percent disability rating for his service-connected bilateral hearing loss and a 10 percent disability rating for his service-connected tinnitus from the date of service connection; that is, the date VA received the Veteran's claim.  Although the Veteran's October 2012 hearing test results in a noncompensable disability rating, the Board observes that the earlier test resulted in a 10 percent disability rating.  Providing the Veteran with the benefit of the doubt, the Board finds that staged ratings are not warranted and will not reduce the Veteran's rating based on the single test results.  As indicated in the discussion above, however, there is no evidence that the Veteran's hearing loss met the criteria for a higher disability rating, and the Veteran's tinnitus has been rated at the statutory maximum throughout the period under consideration.  Thus, staged ratings are not warranted.

In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); see also 38 C.F.R. § 4.10.  The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  During the 2010 examination, the Veteran reported that he had significant difficulty understanding conversation and that he could not always hear his directional indicator in his car.  The examiner determined that the hearing disability may create hearing difficulty; the Board observes that the Veteran was fitted with hearing aids and the Veteran indicated that they helped him accommodate those barriers.  The Veteran has not reported to VA that there was any prejudice caused by a deficiency in the VA examination.  

An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case includes factors such as marked interference with employment or frequent periods of hospitalization that render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The Court held in Thun v. Peake, 22 Vet. App, 111 (2008), that the Board must apply a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

In this case, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral hearing or tinnitus disabilities.  The Veteran reports that he has difficulty hearing and he experiences ringing.  He reported that he has difficulty understanding normal conversation and television at normal volume and that he cannot hear a watch alarm or always hear a turn indicator in his car.  The rating criteria, however, contemplate such difficulty hearing.  The evidence fails to demonstrate that the symptomatology of the hearing loss and tinnitus are of such an extent that application of the ratings schedule would not be appropriate.  Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.  Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.  




ORDER

Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss is denied.

Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus is denied.




____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs