Citation Nr: 1318337 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-11 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for tinnitus, on an extra-schedular basis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1976. The Veteran also has an unverified period of Army Reserve duty from 1976 to 1989. The Veteran's increased rating claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Nashville, Tennessee. In an April 2009 statement, the Veteran requested a videoconference hearing before a Veterans Law Judge. In a June 2010 letter, he was notified that his hearing had been scheduled for July 29, 2010, but he failed to appear for the proceeding and has not provided an explanation for his absence or requested to reschedule the hearing. Accordingly, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). In September 2010, the Board sent the Veteran a letter in offering the Veteran an opportunity to select a representative. In response, in a November 2010 letter, the Veteran indicated that he wished to represent himself. In November 2010, the Board determined that the matter of a disability rating greater than 10 percent for tinnitus, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b) had been raised by the record, and thus expanded the appeal, accordingly. The Board then took action that essentially bifurcated the expanded appeal, denying an initial disability rating greater than 10 percent for tinnitus on a schedular basis and remanded consideration of higher rating for tinnitus on an extra-schedular basis as well as entitlement to an initial compensable disability rating for right ear hearing loss to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In November 2011, the Board denied an initial compensable disability rating for right ear hearing loss and remanded consideration of higher rating for tinnitus on an extra-schedular basis to the RO via the AMC for further development. As was noted in the November 2011 Board decision/remand, in a January 2011 statement, the Veteran reported that he is currently unable to work due to medical reasons. The Board found that this statement raised a TDIU claim. When a TDIU for a service-connected disability is raised in connection with an increased rating claim for that service-connected disability, the Board has jurisdiction over the issue of TDIU because it is part of the claim for increased compensation. Thus, the TDIU claim was added to the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Board remanded the TDIU claim along with the extra-schedular tinnitus claim. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In November 2008 correspondence the Veteran appeared to raise the issue of entitlement to service connection for headaches as secondary to his service-connected right ear hearing loss and tinnitus. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected tinnitus has not been shown to be so exceptional or unusual-with such related factors as marked interference with employment and/or repeated hospitalization-to render the schedular criteria for rating the disability inadequate, and to warrant the assignment of a higher rating on an extra-schedular basis. 2. The Veteran is service connected for the following disabilities: tinnitus, evaluated as 10 percent disabling; and right ear hearing loss, evaluated as noncompensably disabling. A combined disability evaluation of 10 percent is in effect. 3. The Veteran's service-connected right ear hearing loss and tinnitus impairs understanding speech in the presence of background noise or localizing the source of a sound. The Veteran has no difficulty hearing on the telephone with his left ear, but he could have some difficulty hearing on the telephone with his right ear, especially if the telephone is not manufactured for the hearing impaired (i.e., amplified telephone). 4. The Veteran's service-connected disabilities do not, singly or in combination, preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for tinnitus on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1) are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2012). 2. The criteria for TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran submitted a claim for service connection for right ear hearing loss and tinnitus in November 2006. He was afforded a VA audiological examination in October 2007. At that time the Veteran reported a history of tinnitus in the right ear. The tinnitus was not constant but it was recurrent. He indicated that he first noticed the tinnitus following tank and weapon firing during his military service but that the tinnitus had become more frequent over the last two and a half years. The examiner diagnosed bilateral hearing loss and tinnitus and opined that they were as likely as not (50/50 probability) caused by or a result of military noise exposure. By rating decision dated in October 2007, the RO granted service connection for tinnitus, assigning a 10 percent disability rating, and also granted service connection for right ear hearing loss, assigning a noncompensable disability rating. The Veteran disagreed with this initial rating decision and perfected an appeal. In January 2011, another VA audiological examination was conducted. At that time, the Veteran reported a history of tinnitus with an onset date of 2006/2007. The tinnitus was constant. The examiner opined that there were no significant effects on the Veteran's occupation of on his usual daily activities. In a February 2011 addendum opinion the examiner wrote that "[t]he Veteran's right ear hearing loss/tinnitus alone would not render him unable to secure/follow substantially gainful employment." As support for this conclusion, the VA examiner stated that the Veteran's "unilateral hearing loss may limit the type of job he could hold." Specifically, the VA examiner pointed out that it might be difficult for the Veteran to hold any position that would "rely heavily on understanding speech in the presence of background noise or localizing the source of a sound." The VA examiner determined that the Veteran would have no difficulty hearing on the telephone with his left ear, but he could have some difficulty hearing on the telephone with his right ear, especially if the telephone is not manufactured for the hearing impaired (i.e., amplified telephone). 1. Tinnitus Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Additionally, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analyses are therefore undertaken with the consideration that different ratings may be warranted for different time periods. VA's Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321(b)(1). According to the regulation, an extra-schedular 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. Id. There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher, 4 Vet. App. at 60. See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this 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 rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). See also Thun, supra. If the rating schedule does not contemplate the claimant's level of disability and symtomatology, 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of 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 extra-schedular rating. Thun, supra. At the outset, the Board observes that the Veteran expressed his timely disagreement with the October 2007 rating decision that granted him service connection for his tinnitus. As such, the Veteran appealed the initial evaluation assigned and the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. Under Diagnostic Code 6260, there is no provision for assignment of a separate 10 percent evaluation for tinnitus of each ear. Simply put, Diagnostic Code 6260 limits a veteran to a single disability rating of no more than 10 percent for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As above, in the November 2010 Board decision/remand, the Board noted that the RO had not considered 38 C.F.R. § 3.321 in the adjudication of the Veteran's claim for an increased rating for tinnitus. Thus, to avoid any prejudice to the Veteran, the Board directed the RO to consider the matters of higher, extra-schedular ratings tinnitus in the first instance. In the June 2012 supplemental statement of the case the RO considered 38 C.F.R. § 3.321 in the adjudication of the Veteran's claim for an increased rating tinnitus. Specifically, the RO considered the January 2011 VA examiner's opinion that the Veteran's right ear hearing loss and tinnitus alone would not render him unable to secure or follow substantially gainful employment. The RO declined to submit the case for extra-schedular consideration because there was no evidence of record showing unusual or exceptional disability picture with such related factors as marked interference with employment or frequent hospitalization due to the Veteran's service-connected tinnitus as to render impractical the application of regular scheduler standards. The Board also finds that, in this case, the schedular evaluations are not inadequate. Significantly, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the tinnitus is inadequate. The rating criteria reasonably describes the Veteran's disability level and symptomatology as due solely to the Veteran's tinnitus, and the Veteran does not experience any symptomatology not contemplated by the rating schedule. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. The Veteran does not argue, and the evidence does not suggest, that symptoms attributable to tinnitus would be more appropriately evaluated under any alternate diagnostic code or that it manifests in symptoms other than persistent ringing in both ears. The Board has considered the Veteran's contention that he was denied employment because of his tinnitus impairment. However, a review of the record shows that the Veteran resigned from his employment as a material handling case stacker in May 2006 and has been in receipt of Social Security disability benefits since March 2009 due to his diabetes mellitus and various psychiatric disorders. While the Board sympathizes with the Veteran, in the absence of evidence that his service-connected tinnitus alone has negatively impacted or compromised the continuity of his employment, the Board must conclude that more interference than contemplated by the current 10 percent schedular rating simply is not shown. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is moot. See Thun, supra. For all the foregoing reasons, the Board finds that the claim for a disability rating greater than 10 percent for tinnitus, on an extra-schedular basis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. TDIU As above, a review of the record shows that the Veteran resigned from his employment as a material handling case stacker in May 2006 and has been in receipt of Social Security disability benefits since March 2009 due to his nonservice-connected diabetes mellitus and various psychiatric disorders. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extra-schedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for the following disabilities: tinnitus, evaluated as 10 percent disabling; and right ear hearing loss, evaluated as noncompensably disabling. A combined disability evaluation of 10 percent is in effect. 38 C.F.R. § 4.25. As the Veteran does not have either one service connected disability rated at 60 percent or more or a combined disability rating of 70 percent, he does not meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 6. The Board concludes the Veteran is not unemployable due to his service-connected disabilities. The Veteran's service-connected disabilities may interfere with some types of work, but would not prevent him from obtaining work. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A review of the evidence shows that the Veteran's service-connected right ear hearing loss and tinnitus degrade but do not preclude the Veteran from hearing and understanding communications common in a workplace. As above, the January 2011 VA examiner determined that the Veteran's service-connected disabilities would not prevent him from working. Also, in a February 2011 addendum opinion the examiner wrote that "[t]he Veteran's right ear hearing loss/tinnitus alone would not render him unable to secure/follow substantially gainful employment." While the VA examiner noted that the Veteran's "unilateral hearing loss may limit the type of job he could hold," the examiner determined that the Veteran would have no difficulty hearing on the telephone with his left ear. The Board acknowledges that the Veteran's capacity for employment may also be impaired because of age and many other serious illnesses that are not service-connected. These impairments may not be considered under the criteria for a TDIU. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in December 2006, October 2008, and March 2012 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The December 2006 and October 2008 letters also provided the Veteran with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The December 2006 letter was provided prior to the initial RO adjudication of his claim in October 2007. Thus, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed. All evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA treatment records have been obtained. The decision and medical records pertaining to his Social Security disability benefits claim have been obtained. He has been afforded VA examinations. He was afforded the opportunity for a personal hearing. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. As above, in November 2010 and November 2011, the Board remanded the case for additional development, to include proper notice and consideration of a higher rating for tinnitus on an extra-schedular basis as well entitlement to a TDIU which was accomplished by correspondence dated in March 2012 and readjudication in a June 2012 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the November 2010 and November 2011 remand directives such that no further action is necessary in this regard. See D'Aries, supra. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to the Veteran with the development of evidence is required. ORDER An initial disability rating greater than 10 percent for tinnitus on an extra-schedular basis is denied. A TDIU is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs