Citation Nr: 1312669	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  09-16 963	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether the Veteran's substantive appeal with regard to an August 2006 rating decision that denied entitlement to service connection for left ear hearing loss and granted service connection for tinnitus and right ear hearing loss and assigned initial 10 percent and noncompensable evaluations, respectively, was timely filed.

2.  Entitlement to service connection for left ear hearing loss.

3.  Entitlement to an initial compensable rating for right ear hearing loss.

4.  Entitlement to a higher initial rating in excess of 10 percent for tinnitus.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services



ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from June 1954 to October 1957.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that, in March 2008, found that the Veteran did not perfect a timely appeal to an August 2006 rating decision that denied service connection for left ear hearing loss, and granted service connection for tinnitus and right ear hearing loss that were assigned initial 10 percent and noncompensable disability ratings, respectively.

The Veteran was scheduled for a hearing at the RO before a Veterans Law Judge in October 2011 but requested that it be rescheduled.  In March 2013, he was scheduled to testify during a hearing before a Veterans Law Judge conducted via videoconference but, in a February 2013 written statement, indicated that he was unable to attend that hearing and did not request that it be rescheduled.  The Board finds that all due process requirements were met regarding the Veteran's hearing request.

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 left ear hearing loss and an initial compensable evaluation for right ear 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.


FINDINGS OF FACT

1.  A rating decision dated August 4, 2006 denied service connection for left ear hearing loss, and granted service connection for tinnitus and right ear hearing loss, assigned initial 10 percent and noncompensable disability ratings, respectively.  The Veteran was informed of this decision by correspondence dated September 1, 2006.

2.  A timely Notice of Disagreement (NOD) regarding the August 2006 rating decision was received from the Veteran by VA on September 8, 2006.

3.  The Veteran submitted written argument regarding the issues denied by the August 2006 rating decision in letters dated December 23, 2006, April 2, 2007 (erroneously dated April 2, 2006), and August 1, 2007.

4.  A Statement of the Case (SOC) was promulgated on the issues denied by the August 2006 rating decision on November 13, 2007.

5. A VA Form 9 (Appeal to the Board) was received by VA on January 23, 2008.

6.  The Veteran has been in receipt of the maximum schedular evaluation for tinnitus since the effective date of the grant of service connection. 

8.  During the period under consideration, the evidence does not show that the Veteran's tinnitus is manifested by exceptional factors outside of the rating schedule.


CONCLUSIONS OF LAW

1.  The criteria for a timely appeal of the August 4, 2006 rating decision are met.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2012); Archbold v. Brown, 9 Vet. App. 124 (1996).

2.  The criteria for an initial rating in excess of 10 percent for tinnitus are not met.  38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.87, Diagnostic Code 6260 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Timeliness

For the reasons set forth below, the Board finds that the Veteran did perfect a timely appeal to the August 2006 rating decision.  As this represents a complete grant of the benefit sought on appeal with respect to this issue, no discussion of VA's duty to notify and assist is necessary as to this matter.

Pursuant to 38 U.S.C.A. § 7105(a), a request for appellate review by the Board of a decision by the RO is initiated by an NOD and completed by a Substantive Appeal after an SOC has been furnished.  See 38 C.F.R. § 20.200.  Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a NOD with a determination by the RO within one year from the date that that RO mails notice of the determination to him or her.  Otherwise, that determination will become final.  The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. 

A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a NOD.  While special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. 

After a timely NOD is filed, the RO is to take such review action as is appropriate and, if the matter is not resolved to the claimant's satisfaction, issue an SOC.  38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 19.26, 19.29, 19.30.  Once an SOC is issued, the claimant must then file a Substantive Appeal within 60 days from the date the SOC is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever ends later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b); see also Mason (Sangernetta) v. Brown, 8 Vet. App. 44, 55 (1995). 

In this case, the facts are not in dispute.  A rating decision dated August 4, 2006, denied service connection for left ear hearing loss, and granted service connection for tinnitus and right ear hearing loss that were assigned initial 10 percent and noncompensable disability ratings, respectively.  The Veteran was informed of this decision by correspondence dated September 1, 2006.  A timely NOD from the Veteran regarding the August 2006 rating decision was received by VA on September 19, 2006.  A SOC was promulgated to the Veteran on the issue denied and the initial assigned disability evaluations by the August 2006 rating decision on November 13, 2007.  A VA Form 9 (Appeal to the Board) was received by VA on January 23, 2008.

Based upon the foregoing, it appears that the Veteran had until January 13, 2008, in which to submit a timely Substantive Appeal.  See 38 C.F.R. § 20.302.  As stated above, the Veteran's VA Form 9 was not received until January 23, 2008, ten days after this time period.  No other document was received subsequent to the November 2007 SOC and prior to January 13, 2008, that appears to qualify as a Substantive Appeal.

The Board notes; however, that in Archbold v. Brown, 9 Vet. App. 124 (1996), the veteran's court held that the issuance of a SOC was not an absolute requirement for the acceptance of a Substantive Appeal.  Specifically, the court noted that, although the veteran had not received an SOC after the filing of his NOD he, nevertheless, filed correspondence that the court found to meet the requirements for a Substantive Appeal.  Archbold, 9 Vet. App. at 132-33.  The veteran's court stated: 

[T]his written statement presented to and accepted by the Board specifically identified the issue appealed; contained specific arguments as to the errors made by the RO . . .; and thus contained the necessary information required for a [Substantive Appeal] by [38 C.F.R. § 20.202 ].  This . . . statement was timely filed since no SOC was provided to the Veteran (under § 20.202(b), the Veteran had until at least 60 days after the SOC was mailed to him in which to file his [Substantive Appeal]) and, in any event, since the statement was received within the one-year appeal period which began . . . [after] the date the RO decision being appealed was mailed.  See 38 C.F.R. § 20.302(b). 
Id. at 132.  

The court further noted that, if there was a concern as to the adequacy of the Substantive Appeal, it was the Board's obligation (under 38 C.F.R. § 20.203 (1995)) to notify the appellant of such and to allow him a period of 60 days "to present written argument or to request a hearing to present oral argument on this [procedural] question."  Id. 

In Percy v. Shinseki, 23 Vet. App. 37 (2009), the court held that a timely Substantive Appeal was not a jurisdictional requirement for the Board's consideration of a veteran's claim.

Here, following his September 2006 NOD, the Veteran provided three written statements in December 2006 and April and August 2007 regarding the issues denied by the August 2006 rating decision that, collectively, meet the criteria for a Substantive Appeal.  See Tomlin v. Brown, 5 Vet. App. 355 (1993).  The written statements specifically identified the issues appealed; contained specific arguments as to the errors made by the RO in denying service connection for left ear hearing loss and awarding him the initial 10 percent and noncompensable ratings for tinnitus and right ear hearing loss, respectively; and, thus contained the necessary information required for a Substantive Appeal by 38 C.F.R. § 20.202.  

As in Archbold, the statements of the Veteran regarding these issues contain sufficient information to qualify as a Substantive Appeal pursuant to 38 C.F.R. § 20.202.  Therefore, the Board finds that the Veteran did perfect a timely appeal regarding the August 2006 rating decision.  To this extent, the benefit sought on appeal is allowed.  Inasmuch as the Board has found the Veteran did perfect a timely appeal to the August 2006 rating decision, it must now address the claims that were the subject of that appeal.  For the reasons addressed in the REMAND portion of the decision below, the Board finds that a remand is required in this case as to the issues of service connection for left ear hearing loss and an initial compensable rating for right ear hearing loss.  The matter of entitlement to a higher initial rating for tinnitus is addressed below.

II. Initial Rating for Tinnitus

A. Prejudice and Duty to Notify and Assist

The RO most recently considered this issue, not on the merits, but on the basis that a timely Substantive Appeal had not been received.  Although the Board is proceeding to consider this issue on the merits, the Veteran is not prejudiced. The RO issued a rating decision and statement of the case on the merits.  The Veteran has a submitted a notice of disagreement and a substantive appeal in response to those adjudications.  He thus had an opportunity to present argument and evidence on the merits.

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 
  
Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim.  Pub.L. 112-154, §§ 504(a)(1)-(2) (to be codified at 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1) (20).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The veteran's court had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

The Federal Circuit vacated the court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2).  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The generic first, third, and fourth elements (contained in the veteran's court's decision) were not disturbed by the Federal Circuit's decision. 

In an April 2006 letter, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claim.  He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide.  In the April 2006 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and was given the notice required by the surviving portions of Vazquez-Flores.  The AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b).  

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. 
§ 3.159(c).  His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available.  All reasonably identified and available medical records have been secured.  A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence relevant to the claim of a higher initial rating for tinnitus currently on appeal.

Further, in May 2006, the Veteran was afforded a VA examination, for tinnitus, the report of which is of record. 

The Board finds the duties to notify and assist have been met. 

B. Factual Background and Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2012).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  Id.  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

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). 

Where there is a question as to which of two evaluations is to 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 (2012).

In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

The Veteran's statements describing the symptoms of his service-connected tinnitus disability are deemed competent.  However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 

The Veteran contends that an initial rating greater than 10 percent is warranted for his service-connected tinnitus. 

Tinnitus is evaluated pursuant to the criteria found in Diagnostic Code 6260 of the Rating Schedule.  38 C.F.R. § 4.87.  Under those criteria, a rating of 10 percent is warranted where the evidence shows recurrent tinnitus.  38 C.F.R. § 4.87.  This is the maximum allowable schedular evaluation for recurrent tinnitus.

The Board has also considered whether the Veteran's tinnitus disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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) (2012).  

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service- connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Here the Board has considered Mittleider and attributed all potentially service-connected symtoms to his service-connected tinnitus before considering if the Veteran is entitled to an extra-schedular rating.

If the evidence raises the question of entitlement to an extraschedular rating, 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).

Under the approach prescribed by VA, 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").  

Here, there have been no reported manifestations of tinnitus that are outside the rating criteria.  The Veteran has mainly contended that he should receive higher compensation without reporting additional symptomatology.  The Veteran's symptomatology does not represent an exceptional or unusual disability picture as his symptomatology is clearly that envisioned by the criteria for rating his disability.  Accordingly, further consideration of an extraschedular rating is not warranted.  

Rice

In addition, the Board notes that a total rating based on individual unemployability (TDIU) is an element of all initial ratings; and is raised if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to service connected disabilities.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, it has not been suggested that the Veteran's service connected disabilities precludes his employment.  Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. 

Accordingly, the Board finds that the criteria for an initial rating greater than 10 percent for tinnitus are not met.  The preponderance of the evidence is against the Veteran's claim and the claim is denied.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.87, Diagnostic Code 6260.  Moreover, as the preponderance of the probative medical and other evidence of record is against the claim for an increased initial rating for tinnitus, the benefit-of-the-doubt rule does not apply.  38 U.S.C.A. § 5107(b).


ORDER

Inasmuch as the criteria for a timely appeal of the August 4, 2006 rating decision are met, to this extent, the benefit sought on appeal is allowed. 

An initial rating higher than 10 percent for tinnitus is denied.



REMAND

The Veteran seeks an initial compensable evaluation for right ear hearing loss and service connection for left ear hearing loss.  He was last examined by VA in conjunction with his claims in May 2006, nearly seven years ago.  At that time, clinical findings revealed mild left ear hearing loss that did not meet VA criteria.  See 38 C.F.R. § 3.385 (2012).  Since that time, the Veteran has reported increasing frailty.  This suggests that hearing loss may have worsened since the May 2006 VA examination.

Thus, the Veteran is entitled to a new VA examination to determine the current severity of his service-connected right ear hearing loss and whether he has left ear hearing loss related to active service.  See e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995). 

The Board also notes that, in his February 2013 written statement, the Veteran, who is 80 years old, said he was unable to drive in Atlanta traffic.  Thus, efforts should be made to schedule his VA examination at a location in close proximity to his home in Hull, Georgia, if feasible.

Accordingly, the case is REMANDED for the following action:

(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.  Schedule the Veteran for a VA audiology examination (at a location in close proximity to his home in Hull, Georgia, if feasible) to determine the etiology of any diagnosed left ear hearing loss found to be present and the current severity and all manifestations of his service-connected right ear hearing loss.  

Audiometric and any other indicated testing should be conducted and all clinical findings reported in detail. The claims folder should be made available to the examining physician or audiologist for review.

a. For any left ear hearing loss identified, the examiner should opine whether it is at least as likely as not, i.e., is there at least a 50 percent probability, that it had its clinical onset or is otherwise related to the appellant's active duty service.  In providing this opinion, the examiner should consider the Veteran's credible report of exposure to acoustic trauma due to weapons fire in service.  

b. As to the Veteran's service-connected right ear hearing loss, all indicated tests and studies should be performed, including audiometric testing and Maryland CNC testing, and all clinical findings should be set forth in detail.  It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected right ear hearing loss.  The VA examiner should further comment upon the effect of hearing loss on the Veteran's occupational functioning and daily activities. 

c. Any opinion offered should be accompanied by reasons. 

2.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC).  Thereafter, the case should be returned to the Board, if in order. 

No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).  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).




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs