Citation Nr: 1330004 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-08 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss (formerly right ear hearing loss). 2. Entitlement to a rating in excess of 10 percent for tinnitus. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from December 1976 to December 1979 and January 1986 to July 1989. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence does not establish that the Veteran had compensable hearing loss for VA purposes at any point during the period on appeal. 2. The evidence establishes the Veteran continues to have recurrent tinnitus in his right ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.7, 4.85-4.87, Diagnostic Code 6100 (2012). 2. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.7, 4.85-4.87, Diagnostic Code 6260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking increased ratings for his service connected hearing loss and tinnitus conditions. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is seeking a compensable rating for his bilateral hearing loss and a rating in excess of 10 percent for his tinnitus. Under the regulations the assignment of a disability rating for hearing impairment is derived by applying the results of audiometric evaluations to tables included in the rating schedule. 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes eleven auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. Id. 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. 38 C.F.R. § 4.86(a). Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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, and that numeral will be elevated to the next higher Roman numeral. Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85(c). All evidence of record has been reviewed and considered, and the relevant evidence is summarized below. The Board notes that in his August 2009 written notice of disagreement the Veteran asserted that he was assessed with a 30 percent hearing loss in his right ear prior to his separation from the Marine Corps. While service treatment records do reflect the Veteran had some loss of hearing in his right ear during service, as will be discussed, the evidence does not establish the Veteran was entitled to a 30 percent rating for hearing loss at any point since the grant of service connection. In July 2007 the Veteran received an audiology consult at a VA facility. The audiologist noted the Veteran's complaints of decreased understanding of spoken words and increased tinnitus for the past three to five years. The audiologist conducted testing and noted the Veteran had normal hearing in low frequencies bilaterally with mild hearing loss at 4 to 8 KHz in his left ear and mild to moderate hearing loss at 3 to 8 KHz in his right ear. The Veteran had good word recognition ability in his right ear and excellent in his left. The audiologist opined the results did not suggest the Veteran's hearing was communicatively handicapping and hearing aids were not recommended, providing evidence against this claim. In September 2008 the Veteran returned to the VA audiology department. The Veteran reported intermittent tinnitus, described as ringing and "ocean" noise, as well as vertigo when he closed his eyes in a sitting position. Upon examination the audiologist noted the Veteran had normal hearing in lower frequencies bilaterally progressing to moderate to moderately-severe hearing loss in the right ear and mild to moderate hearing loss in the left ear. Excellent word recognition skill was noted bilaterally, providing more evidence against this claim. In December 2008 the Veteran returned for a hearing aid evaluation. The audiologist fitted the Veteran with his aid and noted the Veteran was pleased with the results. In February 2009 the Veteran was provided with a VA examination. The Veteran described ringing in his ears and reported he wore a hearing aid in his right ear. The Veteran stated he was unable to understand some of what was said to him, and complained of annoyance from recurrent tinnitus. The Veteran indicated he experienced tinnitus three times per week. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 55 55 LEFT 15 15 10 30 35 These scores resulted in average pure tone threshold of 38.75 in the right ear and 22.50 in the left. The physician also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85(a). The Veteran attained an 88 percent score in his right ear and a 100 percent score in his left ear. A pure tone average threshold of 38.75 in the right ear with an 88 percent speech discrimination score equates to level II hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 22.5 decibels in the left ear with a 100 percent speech discrimination relates to a level I hearing acuity. Id. Level II rating in the right ear combined with level I rating in the left equates to a noncompensable rating for hearing impairment under 38 C.F.R. § 4.85, Table VII, providing more evidence against this claim. Table VIA is not applicable in this case because the testing results were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) in either ear, nor was the Veteran's pure tone threshold more than 70 decibels at 2000 Hertz in either ear. Furthermore, nothing in the record suggests the speech discrimination test was not appropriate for the Veteran. Therefore the regulatory requirements for use of Table VIA were not met. 38 C.F.R. § 4.86. The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological 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 case the examiner specifically noted the effects of the Veteran's current hearing loss on his usual occupation and daily activities were difficulties understanding people in noisy conditions and annoyance and anxiety from recurrent ringing in his right ear. As such, the Board finds this examination is compliant with the Martinak requirements. In September 2009 the Veteran returned to the VA complaining of increase in hearing loss and "louder and longer" tinnitus, worse in the right ear. The audiologist conducted testing and noted normal hearing to 2 KHz then moderate to moderately-severe hearing loss. The Veteran declined changes to his hearing aid at that time. In April 2013 the Veteran was afforded an additional VA examination. The Veteran reported difficulties distinguishing words from background noise and frequently having to ask people to repeat their words. The Veteran also reported his tinnitus "drives me crazy" and prevented him from falling asleep. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 65 65 LEFT 15 10 15 35 45 These scores resulted in average pure tone threshold of 46.25 in the right ear and 26.25 in the left. The physician also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85(a). The Veteran attained a 52 percent score in his right ear and a 94 percent score in his left ear. A pure tone average threshold of 46.25 in the right ear with a 52 percent speech discrimination score equates to level VI hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 26.25 decibels in the left ear with a 94 percent speech discrimination also relates to a level I hearing acuity. Id. Level VI rating in the right ear combined with level I rating in the left ear equates to a noncompensable rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. This finding provides more objective evidence against this claim. Table VIA is not applicable in this case because the testing results were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) in either ear, nor was the Veteran's pure tone threshold more than 70 decibels at 2000 Hertz in either ear. Additionally, the VA examiner specifically opined the use of speech discrimination score testing was appropriate for the Veteran. Therefore the regulatory requirements for use of Table VIA were not met. 38 C.F.R. § 4.86. The examiner also specifically noted the effects of the Veteran's current hearing loss on his usual occupation and daily activities were difficulties hearing with background noise, as well as frequently asking others to repeat themselves. The Veteran also reported his tinnitus prevented him from falling asleep. As such, the Board finds this examination is compliant with the Martinak requirements. 21 Vet. App. at 455. The Board finds that the evidence of record does establish the Veteran currently has hearing loss, worse in this right ear than his left. However, none of the evidence establishes the Veteran had compensable hearing loss under VA regulations. The Board acknowledges that in a July 2010 report of contact the Veteran reported he had an audio evaluation at a VA clinic in June 2010. Unfortunately the report of this evaluation is not included in the record. However, as discussed above, the VA examination from April 2013, nearly three years after the alleged June 2010 evaluation, continued to reflect the Veteran had noncompensable hearing loss. If any compensable rating was reflected in the June 2010 evaluation it would have still been reflected during the more recent VA examination. As such, the Board finds the Veteran was not harmed by any failure to obtain the June 2010 VA hearing evaluation as testing both before and after this alleged testing indicated noncompensable hearing tests. It is important for the Veteran to understand that this finding does not suggest that the Veteran does not have a problem with his hearing. It is simply a finding that his hearing, at this time, does not provide a basis to award a compensable evaluation for his hearing loss, which is based, very generally, on industrial impairment. Based on the foregoing the Board finds the evidence of record continues to reflect the Veteran merits a noncompensable rating for his service-connected hearing loss. None of the evidence of record establishes the Veteran had loss of hearing acuity to merit a compensable rating. Should the Veteran's continue to have decreased hearing acuity he is invited to refile his claim with additional medical evidence documenting his additional hearing loss. However, at this time his claim for a compensable rating for service-connected hearing loss is denied based on the objective medical evidence. In regards to the Veteran's claim for tinnitus, the Board finds the evidence establishes the Veteran currently has tinnitus in his right ear. The Veteran is currently rated at 10 percent for this condition under Diagnostic Code 6260. 38 C.F.R. § 4.87. The Board notes a 10 percent rating is the maximum schedular rating for tinnitus. Note 2 after Diagnostic Code 6260 specifically states that only a single evaluation for recurrent tinnitus is warranted, whether the sound is perceived in only one ear or both ears. Id. Therefore, the Board finds the Veteran is currently receiving the maximum schedular rating for tinnitus. As such, the Board cannot grant an increased rating under the schedular rating criteria. The Veteran's claim for an increased rating for his service-connected tinnitus is denied. In regards to both the Veteran's claims the Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran'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"). See id. However, in this case, the evidence fails to show anything unique or unusual about the Veteran's hearing loss or tinnitus that would render the schedular criteria inadequate. Review of the record reflects the Veteran's primary complaints were of difficulties discerning speech in the presence of background noise, as well as ongoing annoyance of ringing in his ears. The Board finds these complaints were fully addressed by the schedular rating criteria under which such disabilities are rated. Specifically, the rating criterion for hearing loss contemplates the difficulty the Veteran has hearing in all situations, to include with background noise. In this regard, the rating schedule, in evaluating a hearing loss disability, takes into account both the average decibel loss as well as speech discrimination scores. Therefore, the Board finds that such manifestations of the Veteran's hearing loss disability are contemplated by the rating schedule. In addition, the annoyance of recurrent ringing in the ears is a usual symptom associated with recurrent tinnitus and therefore contemplated by the rating criteria. As such, there are no additional symptoms of his hearing loss or tinnitus disabilities that are not addressed by the rating schedule. Therefore referral for consideration for an extra-schedular rating is not warranted in either claim. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the Veteran has not alleged that he is unemployable on account of his service-connected hearing loss or tinnitus. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected hearing loss or tinnitus. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. As discussed above, the Veteran referenced a hearing evaluation conducted by a VA facility in June 2010 that is not included in the record. However, the subsequent VA examination from April 2013 established the Veteran still did not have compensable hearing loss for VA purposes. Because any hearing loss reflected in June 2010 evaluation also would have been reflected in the April 2013 VA examination, the Board finds the Veteran was not prejudiced by any failure to obtain the June 2010 hearing evaluation. Finally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, the Veteran has not voiced any issue with the adequacy of either examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claims are denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs