Citation Nr: 1327705	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  12-13 199	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for tinnitus.

2.  Entitlement to a compensable evaluation for bilateral hearing loss.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from January 1968 to January 1971 and from June 1983 to August 2005.  The Veteran also had service for several years in the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied increased evaluations for the Veteran's bilateral hearing loss and tinnitus.  He timely appealed that decision.

The Board has taken jurisdiction over the TDIU claim on appeal at this time in light of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a claim for TDIU is part and parcel of a claim for increased evaluation.  

The issue of entitlement to eligibility for educational benefits (claimed as the revocation of educational benefits) has been raised by the record, but 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.  

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 increased evaluation for bilateral hearing loss and entitlement to TDIU 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

The Veteran is currently assigned a 10 percent evaluation for his tinnitus under Diagnostic Code 6260, effective June 29, 2007-the date on which he submitted his initial claim for service connection.


CONCLUSION OF LAW

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


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009).  Here, the Veteran was sent a letter in February 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records 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 necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also 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 claim herein decided.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Id.; Powell v. West, 13 Vet. App. 31, 35 (1999).  Nevertheless, 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 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran was awarded service connection for tinnitus in a July 2008 rating decision.  He was assigned a 10 percent rating, effective June 29, 2007-the date on which he filed his initial claim for service connection.  He did not appeal the assigned rating at that time.  In a January 2011 correspondence, the Veteran filed a claim for increased evaluation of his hearing loss disability only.  The RO adjudicated both an increased evaluation for hearing loss and tinnitus in the July 2011 rating decision which is the subject of that appeal.

The RO has denied the Veteran's request for increased evaluation of his tinnitus in both the July 2011 rating decision and April 2012 statement of the case because under Diagnostic Code 6260 there is no provision for assignment in excess of 10 percent for that disorder.  The Veteran appealed that decision to the Board. 

On appeal, the Veteran has asserted that his hearing loss is worse and that he cannot hear due to background noise problems and his tinnitus.  In February 2011 statements, he reported that he had difficulty hearing due to background noise, particularly machine noise, his tinnitus, and because of the combined effects of his hearing loss and tinnitus; he reported having a difficulty understanding complete conversations.  In his September 2011 notice of disagreement, the Veteran specifically asked for a "combined evaluation" of his hearing loss and tinnitus.  

The Board has reviewed the claims file with regards to tinnitus.  Of note, the Board notes that no complaints or treatment for tinnitus or ringing of the ears are demonstrated in the Veteran's VA treatment records from January to July 2011 in the claims file.  

The Veteran most recently underwent a VA examination of his audiologic condition in March 2011.  It was noted that the Veteran continued to have tinnitus, as in his previous 2008 audiological examination, to include that it disrupted his sleep.  He reported that his tinnitus was constant at that time.  The Veteran's tinnitus was noted as being related to his hearing loss.  However, the Veteran's bilateral hearing loss and tinnitus were not shown at that time to have any significant effects on his occupation or usual daily activities.

With respect to the Veteran's request for a "combined evaluation" of his bilateral hearing loss and tinnitus, the Board denies that request because (a) such a combined evaluation would be disadvantageous to the Veteran's in that it would potentially decrease the assigned evaluation he could get for those two disabilities separately; and, (b) under the relevant VA law and regulations, different service-connected disabilities should be separately evaluated.  See Estaban v. Brown, 6 Vet. App. 259 (1994) (in cases where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps).  

Accordingly, the Board finds that the separate evaluations of the Veteran's bilateral hearing loss and tinnitus are proper under VA law and regulations and a "combined evaluation" for those two disabilities should not be contemplated, as such is contrary to VA law and regulations as well as potentially disadvantageous to the Veteran's potential evaluations for those two disabilities.

Turning solely to the increased tinnitus claim, in Smith v. Nicholson, 19 Vet. App. 63, 78, (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.

The Veteran's service-connected bilateral tinnitus is currently evaluated as 10 percent disabling, which is the maximum evaluation available under Diagnostic Code 6260.  See 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral); VAOPGCPREC 2-2003 (Diagnostic Code 6260 authorizes a single schedular 10 percent disability rating for tinnitus, regardless of whether the tinnitus is perceived as unilateral or bilateral).  Where, as here, there is a lack of entitlement under the law, the claim for a schedular evaluation in excess of 10 percent, to include separate schedular ratings, for bilateral tinnitus is denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012).  An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

In this case, the schedular evaluation is adequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected tinnitus, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.  As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An evaluation in excess of 10 percent for tinnitus is denied.


REMAND

With regards to the Veteran's bilateral hearing loss, the last VA examination of that disability was in March 2011.  Since that assessment, the Veteran submitted a November 2012 correspondence, which in pertinent part, noted that he had "again been issued new hearing aids indicative of a worsening of [his] condition."  In light of the Veteran's statement that his hearing symptomatology has worsened since his last VA examination, the Board finds that a remand is necessary in order to obtain a new VA examination.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).

Ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

The Board notes that the Veteran's TDIU claim has not yet been sufficiently developed, including the issuance of proper notice.  Moreover, that claim is inextricably intertwined with the remanded bilateral hearing loss claim.  Accordingly, the Board finds that the TDIU claim must also be remanded at this time.  See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

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.  The RO/AMC should properly develop the Veteran's TDIU claim, to include issuance of proper VCAA notice compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as well as attempting to obtain from the Veteran a 

2.  Obtain any relevant VA treatment records from the Saginaw VA Medical Center, or any other VA medical facility that may have treated the Veteran, since July 2011 and associate those documents with the claims file.

3.  Ask the Veteran to identify any private treatment that he may have had for his bilateral hearing loss, which is not already of record.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

4.  Schedule the Veteran for a VA audiologic examination in order to determine the current severity of his bilateral hearing loss.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the results reported in detail.  

Following a claims file review, the examiner should examine the Veteran.  Such results of that examination should be reported in detail.  That examination report should also discuss the Veteran's complaints of hearing loss and its impact on his activities of daily living and occupational functioning.  

The examiner should additionally note whether the Veteran is currently employed or not.  If not, the examiner should opine whether the Veteran's hearing loss and tinnitus preclude him from obtaining and maintaining substantially gainful employment.

All opinions must be accompanied by a clear rationale.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

5.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims for increased evaluation of his bilateral hearing loss and entitlement to TDIU.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs