Citation Nr: 1321337 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-23 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable initial rating for bilateral hearing loss disability prior to April 17, 2013. 2. Entitlement to a staged initial rating in excess of 20 percent for bilateral hearing loss disability, evaluated as 20 percent disabling from April 17, 2013. 3. Entitlement to an extraschedular rating for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant and wife, D.S. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 1967 to March 1972. These matters come before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. In October 2012, the Veteran and a witness testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the pendency of the Veteran's appeal, the Appeals Management Center (AMC), in a May 2013 rating decision, granted the Veteran an evaluation of 20 percent for his bilateral hearing loss disability, effective from April 17, 2013. These matters were previously before the Board in January 2013 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remand and will proceed to adjudicate the appeal. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's bilateral hearing loss disability has been manifested by complaints of difficulty understanding people speaking. 2. Prior to April 17, 2013, the Veteran's bilateral hearing loss disability has been clinically shown to be manifested by no worse than Level V hearing in the right ear and Level I hearing in the left ear. 3. From April 17, 2013, the Veteran's bilateral hearing loss disability has been clinically shown to be manifested by no worse than Level VI hearing in the right ear and Level IV hearing in the left ear. 4. The Veteran has not been shown to have symptoms of hearing loss disability which are not contemplated by the rating criteria. 5. Throughout the rating period on appeal, the Veteran's tinnitus has been manifested by complaints of persistent constant bilateral tinnitus. 6. The Veteran's tinnitus is assigned a single 10 percent rating, which is the maximum evaluation authorized under Diagnostic Code (DC) 6260; and he has not been shown to have any symptoms which are not contemplated by the rating criteria. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to April 17, 2013 for the Veteran's bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100 (2012). 2. The criteria for a rating in excess of 20 percent from April 17, 2013 for the Veteran's bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100 (2012). 3. The criteria for application of the extraschedular rating provisions for the Veteran's tinnitus have not been met and referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service is not warranted. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with initial evaluations following the grant of service connection for tinnitus and bilateral hearing loss disability. 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); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA has a duty to assist the Veteran in the development of the claims. The claims file includes VA and private medical records, lay statements, and the statements of the Veteran in support of his claims, to include his testimony at a Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. A VA examination was obtained in April 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded an adequate VA examination. The report includes clinical examination, diagnostic testing, and the Veteran's reported symptoms. The report provides findings relevant to the criteria for rating the disabilities at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher 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. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating hearing loss Disability ratings for hearing loss 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 pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 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 pure tone audiometric test. The horizontal 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 vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e) (2012). The provisions of 38 C.F.R. § 4.86(a) provide that when the pure tone threshold 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Rating Tinnitus Tinnitus is evaluated at 10 percent. Only a single evaluation for recurrent tinnitus is assigned, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6262, Note (2). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Rating Hearing Loss The Veteran is service connected for hearing loss disability evaluated as noncompensable prior to April 17, 2013. The pertinent competent clinical evidence of record includes a March 2006 VA audiology evaluation report. The report reveals that relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 60 70 85 LEFT 15 25 50 50 On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was recorded as 59 decibels. His pure tone threshold average for the left ear was recorded as 35 decibels. His speech recognition ability was 68 percent for the right ear and 92 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the March 2006 VA audiogram examination, the Veteran's right ear hearing loss is a Level V impairment. The Veteran's left ear hearing loss is a Level I impairment. Based on the results, the Veteran's right ear is considered to be the poorer ear. Applying the criteria from Table VI to Table VII, based on the results of the March 2006 audiogram examination findings, a noncompensable evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row 1 with column V. The Board has considered the provisions of 38 C.F.R. § 4.86, but these provisions do not apply here. An April 2006 private record reflects that the Veteran had a "sloping mild to moderate predominately high frequency sensorineural hearing loss in the left ear" and a "sloping mild to severe predominantly high frequency sensorineural hearing loss in the right ear." The report does not list specific levels for the frequencies tested. The Veteran had 76 percent speech discrimination in the right ear, and 96 percent speech discrimination in the left ear. It was further noted that the Veteran had an infection of the right ear. The Board notes that these are higher, or better, speech discrimination scores than on VA examination the previous month. For purposes of rating, the Board will use the lower, or worse, scores found on VA examination as that report also lists specific findings for each frequency, and provides the Veteran with the benefit of the worse scores. A November 2006 VA clinical record reflects that the Veteran was taking Buspar for his tinnitus, and that the use of Gingko had not improved his tinnitus. A September 2011 VA clinical record reflects that the Veteran had normal hearing through 1,000 Hz dropping to a moderate hearing loss in the left ear. He had normal hearing through 1,000 Hz dropping to a severe to profound hearing loss in the right ear. His speech recognition score was 88 percent for the right ear and 96 percent for the left ear. A November 2011 VA clinical record reflects that the Veteran reported that he was "very pleased" with his hearing aids. An April 2013 VA audiogram is also of record. The record revealed the relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 65 85 90 LEFT 20 60 60 60 On the basis of the numbers shown above, the Veteran's pure tone threshold average for the right ear was 66 decibels. His pure tone threshold average for the left ear was 50 decibels. His speech recognition ability was 68 percent for the right ear and 76 percent for the left ear using the Maryland CNC speech recognition test. Applying 38 C.F.R. § 4.85, Table VI to the April 2013 VA audiogram examination, the Veteran's right ear hearing loss is a Level VI impairment. The Veteran's left ear hearing loss is a Level IV impairment. Based on the results, the Veteran's right ear is considered to be the poorer ear. Applying the criteria from Table VI to Table VII, based on the results of the April 2013 audiogram examination findings, a 20 percent evaluation is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row IV with column VI. The Board has considered the provisions of 38 C.F.R. § 4.86, but these provisions do not apply here. The Board acknowledges the Veteran's statements that he has difficulty hearing and understanding speech. The Board also acknowledges the many lay statements of record which reflect that others have noticed that the Veteran has difficulty hearing. However, the Board finds that in determining the actual degree of disability, the objective examinations are more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran and other lay individuals alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, DC 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). In conclusion, the evidence of record does not reflect that a compensable rating prior to April 17, 2013 is warranted, or that a rating in excess of 20 percent is warranted from April 17, 2013 for the Veteran's bilateral hearing loss disability. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular (hearing loss and tinnitus) The Veteran is service-connected for tinnitus and is currently assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260. Under DC 6260, the highest possible evaluation is 10 percent, thus, it is not possible for the Veteran to receive a higher rating under DC 6260. Moreover, only a single rating is warranted for tinnitus regardless of whether the tinnitus is unilateral or bilateral. DC 6260, Note (2). In a January 2013 decision, the Board denied the Veteran's claim for a scheduler evaluation higher than 10 percent, and remanded the issue of entitlement to a disability rating greater than 10 percent on an extraschedular basis. In a May 2013 rating decision, the AMC determined that entitlement to an extraschedular rating was not warranted. Under Thun v. Peake, 22 Vet App 111 (2008), there is 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 claimant's level of disability and symptomatology and is found inadequate, the Board must 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 Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiometric examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R.§ 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted, that "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra- schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." The April 2013 VA examination report reflects that the Veteran reported that his television volume is louder than before, and that he does not hear the telephone as well as before. He further stated that his biggest concern is how well he hears and understands what is said at work. He reported that he is typically in a courtroom setting and had difficulty understanding the multiple conversations in the courtroom, with the most difficult hearing women and children. He also reported that he misunderstands numbers, and that he may need to retire, although he does not want to do so. In this regard, the Board notes that the Veteran has stated since 2006 that he may need to stop working due to his hearing loss; however, he has continued to be able to maintain his employment for the past seven years. The Veteran also reported that, because of his tinnitus, he needs other noise around in order to not think about it, and that he sleeps with the television on in order to be able to get to sleep. 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 service-connected bilateral hearing loss and tinnitus is inadequate. Tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)). Thus, any averments that tinnitus causes the Veteran difficulty hearing conversations or sleeping without background noise, is the precise symptomatology and effects contemplated by schedular criteria. Furthermore, as to his hearing loss disability, the Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). The Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The Board acknowledges that the Veteran's occupation, as a prosecuting trial attorney, inherently involves verbal communication in a courtroom setting; however, the second prong of Thun need not be addressed as such hearing difficulties are contemplated in the rating criteria. Moreover, assuming arguendo, that the first prong had been met, the evidence does not reflect marked interference with employment or frequent periods of hospitalization (i.e. the second prong of Thun). While the Veteran has testified to difficulty hearing and problems sleeping without background noise, and lay statements from colleagues also reflect hearing loss, there is no competent credible evidence of record that the Veteran has missed work, been reprimanded, been demoted, been passed over for promotion, or any other situation which would reflect "marked interference" with employment. Although the Veteran has asserted that he needs assistance to hear adequately enough to perform his job, he has assistance (i.e. hearing aids) and has been able to maintain his employment. Moreover, he testified in October 2012 that his hearing aid has "been a tremendous help." Based on the foregoing, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence of record is against a finding that a claim for TDIU has been reasonably raised. The records are negative for a finding that the Veteran was unable to maintain substantial gainful employment due to service-connected disability (ies). Not only are the records negative for such a finding, but the evidence reflects that the Veteran has been continually employed in a professional capacity in keeping with his training and experience during the rating period on appeal. The Board notes that the Veteran testified at the 2012 Board hearing that he may have to retire; nonetheless, the evidence does not reflect that he is currently unemployed or that he has been unemployed at any time during the rating period on appeal. Statements in December 2006, August 2008, and October 2012 all reflect that he is employed. In a statement dated in August 2008, the Veteran stated that his hearing is going to cost him his job; however, as of April 2013, the Veteran was still employed in the same occupation. The Board cannot award TIDU, or remand it for RO consideration, based on a speculative future situation. If and when, the Veteran is no longer able to follow a substantially gainful occupation, he may apply for TDIU. Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. ORDER Entitlement to a compensable initial rating for bilateral hearing loss disability prior to April 17, 2013 is denied. Entitlement to a staged initial rating in excess of 20 percent for bilateral hearing loss disability, evaluated as 20 percent disabling from April 17, 2013, is denied. Referral for extraschedular consideration of an evaluation in excess of 10 percent for tinnitus is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs