Citation Nr: 1311977	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  11-24 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to compensable initial rating for the service-connected hearing loss.

2.  Entitlement to a higher rating for tinnitus, currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs



WITNESSES AT HEARING ON APPEAL

Appellant and his spouse



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

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

The Veteran served on active duty from May 1953 to May 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that granted service connection for tinnitus and assigned an initial rating of 10 percent effective from December 7, 1999.

Also on appeal is a March 2011 RO rating decision that granted service connection for bilateral hearing loss disability and assigned a noncompensable initial evaluation effective from April 13, 2010.

The Veteran and his spouse testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in September 2012.  In October 2012 the Board remanded the appeal to the Originating Agency for additional development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In its October 2012 action, the Board referred two newly-raised issues to the Originating Agency for development and initial adjudication: entitlement to earlier effective dates for service connection for hearing loss and for tinnitus, to include as due to Clear and Unmistakable Error (CUE) in the rating decisions of November 2010 and March 2011 (see Transcript of Videoconference Hearing, pages 3-4).  Review of the claims file and of Virtual VA does not show any action on these issues to date, and they are again referred to the Originating Agency for appropriate action.


FINDINGS OF FACT

1.  From December 7, 1999, the Veteran's hearing loss disability has been manifested at worst by a Level IV hearing impairment in the left ear and a Level II hearing impairment in the right ear.

2.  The veteran's bilateral tinnitus is assigned a 10 percent rating, the maximum rating available under Diagnostic Code 6260, and the disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable rating for hearing loss are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.383, 4.85, Diagnostic Code 6100 (2012).

2.  The criteria for an evaluation in excess of 10 percent for bilateral tinnitus have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.012, 3.321, 4.87, Diagnostic Code 6260 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied under the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). 

The VA is required to 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.  The VA is required to notify a 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, the 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, the VA will attempt to obtain on behalf of the claimant.  In addition, 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 be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The United States Court of Appeals for Veterans Claims (Court) has 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 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. 473, 490-491; see also Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007).  

In any event, the Veteran has not alleged or demonstrated any prejudice with regards to the content or timing of notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice irregularity and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  Service treatment records (STRs) are on file, as are records from those VA and non-VA medical providers the Veteran identified as potentially having relevant treatment records.  The Veteran received appropriate VA audiological evaluations, and he was afforded a hearing before the Board.  The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this appeal.  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file.  See Mayfield, 499 F.3d 1317.  Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.

Finally, the Veteran has been afforded a hearing before the undersigned VLJ in September 2012 in which he testified in support of his appeal.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that was/were lacking to substantiate the claims.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, neither the Veteran nor his/her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim(s) based on the current record.  

Evaluation of Hearing Loss Disability

Applicable Laws and Regulations

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 conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where there is a question as to which of two evaluations shall 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.

It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

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 audiometric 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).  

Provisions for evaluating exceptional patterns of hearing impairment are as follows.

(a)  When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels 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.

(b)  When the puretone thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately.  38 C.F.R. § 4.86.

In any claim for higher ratings, the Board must discuss whether "staged ratings" are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d 1313, 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).   

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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.

Evidence and Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability herein decided.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability.  

Service connection is effective from April 13, 2010.  Because this is a claim for increased initial rating, the Board has considered evidence relating to severity of disability since that date.

The Veteran had a VA audiological evaluation in May 2010 in which he complained of bilateral hearing, left ear worse than right.  His hearing loss was most bothersome when watching television or speaking on the telephone.  On examination his puretone thresholds were as follows:



HERTZ

500
1000
2000
3000
4000
AVG.
LEFT
N/A
  20
 45
  95
90
63
RIGHT
N/A
  10
20
  60
65
39

Speech recognition was 94 percent in the left and 96 percent in the right.  The audiologist characterized the Veteran as having bilateral sensorineural hearing loss (SNHL), mild in the right ear and moderately severe in the left ear.

Applying the values above to Table VI results in a Level II Roman numeral designation for the left ear and a Level I designation for the right ear.  Application of these Roman numeral designations to Table VII results in a noncompensable rating.  The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment.

In his Notice of Disagreement (NOD), received in June 2011, the Veteran stated he felt his hearing loss was more severe than 0 percent disabling.  In his substantive appeal, received in September 2011, he stated that he could not hear much when in a crowded room.

The Veteran testified before the Board in September 2012 that a hearing test in a soundproof booth does not accurately depict his functional impairment associated with impairment of his ability to converse.  The Veteran stated he could hear individual sounds, especially if he is able to look straight at a speaker, but differentiating sound is more difficult when several people are speaking or if there is background noise.  The Veteran is legally blind, which accentuates his difficulty communicating.  The Veteran stated he had to give up his job as a salesman because he could not effectively speak to customers, and the Veteran's wife stated the Veteran gave up being an elder in his church for the same reason.  The Veteran now resides in an assisted-living facility, and it is difficult in that environment to communicate with his caregivers.

The Board remanded the case in October 2012 for the purpose of affording the Veteran an audiological evaluation that would include an opinion regarding the functional impairment caused by the Veteran's hearing loss, rather than a simple account of his audiological results.  The audiological evaluation was performed in November 2012.  On examination his puretone thresholds were as follows:


HERTZ

500
1000
2000
3000
4000
AVG.
LEFT
N/A
  25
 45
  95
90
64
RIGHT
N/A
  10
 25
  55
60
38

Speech recognition was 80 percent in the left and 86 percent in the right.  

Applying the values above to Table VI results in a Level IV Roman numeral designation for the left ear and a Level II designation for the right ear.  Application of these Roman numeral designations to Table VII results in a noncompensable rating.  The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment.

In terms of functional impairment, the Veteran described having adequate hearing when alone, but having difficulty hearing in crowded environments such as weddings, picnics or conversing with more than one person.  The Veteran stated he cannot hear what people are saying, or misinterprets what they are saying and answers incorrectly.
 
On review of the evidence above, the Board notes that the Veteran's hearing loss disability has been manifested at worst by a Level II hearing loss in the right ear and a Level IV hearing loss in the left ear.  These results are squarely within the criteria for noncompensable evaluation.  

VA must consider all favorable lay evidence of record.  38 USCA § 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, in which he generally contends his disability should be rated higher than the current evaluation, and his testimony before the Board in which he described his functional impairment.

A layperson is competent to testify in regard to the onset and recurrence of symptoms.  However, the rating schedule for hearing loss is a reasonable exercise of the Secretary's rulemaking authority.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Whereas the Veteran's hearing loss 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 ratings higher than those currently assigned.

The Veteran has complained that audiological evaluation performed in a soundproof environment does not accurately portray the functional impairment of his hearing loss disability, but the regulation specifically requires that evaluation of hearing impairment be based on an audiological evaluation that includes a controlled speech discrimination test and a puretone audiometry test; see 38 C.F.R. § 4.85(a).  Thus, the regulation dictates the testing environment.

Consideration has been given to assigning a staged rating; however, at no during the period under review does the disability warrant more than the ratings assigned.  See Fenderson, 12 Vet. App. 119.

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

In this case the manifestations of his hearing loss are contemplated by the schedular criteria, which specifically consider hearing acuity in conjunction with speech discrimination (these being the two functional impairments of which the Veteran complains).  The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order.

Finally, the Court has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  The Veteran has asserted that he stopped working as a salesman due to his inability to speak to customers, but he has not asserted, and review of the file does not show, that his service-connected hearing loss and tinnitus disabilities on appeal render him unable to obtain and maintain any gainful employment.  The Board accordingly finds that a claim for a TDIU is not raised by the rating issues on appeal before the Board. 

Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54.

Evaluation of Tinnitus

Applicable Laws and Regulations

Tinnitus is evaluated under the provisions of 38 C.F.R. § 4.87, DC 6260.  Under this DC, a rating of 10 percent is awarded for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.  The schedular criteria provide for a 10 percent rating regardless of the subjective severity (noise level) of the tinnitus and regardless of whether the tinnitus is recurrent or constant.  Because the Veteran's tinnitus has already been assigned the maximum schedular rating available under DC 6260 there is no legal basis upon which to award a higher or separate schedular evaluation.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  As such, entitlement to a higher schedular evaluation must be denied.  Id.; see also Sabonis v. Brown, 6 Vet. App. 426 (1994).  

The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation, disability and death pension, and in eligibility determinations.  The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability.  38 C.F.R. § 3.321(a).

Ratings shall be based as far as practicable, upon the average impairments of earning capacity, with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury.  38 C.F.R. § 4.1; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).   

The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case for such an evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008), citing Thun, 22 Vet. App. 111, 115.

Evidence and Analysis

The Veteran had a VA audiological evaluation in May 2010 in which he complained of constant bilateral tinnitus, which he described as a low-pitched buzzing sound.  The Veteran stated the tinnitus was most bothersome when he dwelt on it; typically it was bothersome when trying to fall asleep or watch television.  

In his NOD, received in June 2011, the Veteran stated he felt his tinnitus was more severe than 0 percent disabling.  In his substantive appeal, received in September 2011, he stated that his tinnitus was a buzzing sound rather than a ringing sound.

The Veteran testified before the Board in September 2012 that his tinnitus is more bothersome than his hearing loss, and that his tinnitus actually causes his functional hearing impairment by making it difficult to understand conversation.  He also testified that his tinnitus is different from the hearing loss because the tinnitus is distracting and makes it difficult to focus on what is being said to him.  The Veteran testified that tinnitus is constantly present during his waking hours.  

The Board Veteran had another VA audiological evaluation in October 2012, during which he characterized the impact of tinnitus on his daily life as interference with his ability to hear.

The Board cannot grant extraschedular evaluation; the Board can merely review the Originating Agency's determination as to whether such referral is warranted. Barringer, 22 Vet. App. 242.  As noted above, if the schedular criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun, 22 Vet. App. 111, 115.  The Veteran in this case essentially asserts the schedular criteria are inadequate because they provide for a single disability rating and thus do not reasonably describe his disability level.

The Board makes no finding at this point as to whether the schedular criteria for tinnitus under DC 6260 generally do or do not adequately describe the level of impairment of the average person with tinnitus, per Thun.  Instead, the Board will address the Veteran's specific contentions under the underlying provisions of 38 C.F.R. § 3.321(b).  Per 38 C.F.R. § 3.321(b)(1), the governing norm for a qualifying "exceptional or unusual disability picture" is a finding that the application of the regular schedular standards is rendered impractical due to such related factors as marked interference with employment or frequent periods of hospitalization.  

The Veteran in this case has not shown any hospitalization due to tinnitus.  The Veteran has asserted that he stopped working as a salesman because his hearing problems (loss of hearing acuity combined with tinnitus) made it difficult to communicate with customers, but schedular rating itself is recognition that claimant's industrial capacity is impaired to some degree.  Van Hoose, 4 Vet. App. 361, 363.  The Veteran has not shown a "marked interference with employment" to a degree that is not contemplated and compensated by his current schedular rating.

Based on the evidence and analysis above the Board finds the Veteran's tinnitus does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Thus, the criteria for referral of the Veteran's service-connected tinnitus for extraschedular evaluation are not met and the claim must be denied.

Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54. 


ORDER

A compensable initial rating for the service-connected hearing loss is denied.

A higher rating for tinnitus is denied.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs