Citation Nr: 1330065 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-30 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus associated with bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran had active duty service from January 1951 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is manifested by no more than Level III hearing in the right ear and Level IV hearing in the left ear. 2. The Veteran is in receipt of the maximum schedular disability rating for tinnitus. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2013). 2. There is no legal basis for the assignment of an initial schedular disability rating in excess of 10 percent for the Veteran's tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). For the current claims for increased ratings for bilateral hearing loss and tinnitus, because the June 2012 rating decision on appeal granted service connection and assigned disability ratings and effective dates for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess, 19 Vet. App. at 490-91. During the pendency of this appeal, the Veteran has had ample opportunity to respond and supplement the record. He has not alleged prejudice resulting from any notice deficiency. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Accordingly, the Board finds that VA has satisfied the duty to notify in the instant case. All relevant evidence necessary for an equitable resolution of the issues on appeal has also been identified and obtained, to the extent possible. A March 2012 "Formal Finding of Unavailability of Service Records" indicated that the National Personnel Records Center (NPRC) notified the RO in October 2011 that the Veteran's service treatment records (STRs) were "fire related" (meaning they were destroyed or damaged in a fire at the NPRC) and that the Veteran's STRs were unavailable. The March 2012 document indicated that the RO notified the Veteran in April 2011 that his STRs were unavailable and sent him a NA Form 13055 "Request for Information Needed to Reconstruct Medical Data" and requested alternate source information. Although the Veteran did not complete this form, he did submit copies of a card showing his entrance and discharge dates from military service. Thus, it appears that VA does not have complete STRs for the Veteran despite having exhausted all avenues for obtaining these records. Moreover, as the issue at hand is entitlement to higher ratings, and not entitlement to service connection, which has already been established, the Board finds that the STRs are not relevant to the salient issue of the current severity of the Veteran's bilateral hearing loss and tinnitus disabilities. Therefore, the Board finds that VA has fulfilled its duty to assist with respect to obtaining the Veteran's STRs. Moreover, the record includes the report of an April 2012 VA examination conducted by an audiologist which tested the Veteran's hearing acuity and documented the Veteran's description of the effects of his hearing loss and tinnitus disabilities on occupational functioning and daily activities. Thus, the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Regarding the adequacy of the examination for extraschedular evaluation, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that, unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating is warranted. The Court held that 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. Id. Here, the April 2012 VA audiological examiner did describe the impact of the Veteran's hearing loss on the ordinary conditions of his life. Accordingly, the Board finds the record contains sufficient evidence to evaluate the Veteran's hearing loss claim on an extraschedular basis. Finally, the Board notes that the Veteran and his representative have not identified any other outstanding relevant evidence. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Increased Rating Claims Hearing Loss The Veteran contends that his bilateral hearing loss disability is more severe than is reflected by the current 10 percent disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. A request for an increased rating must be viewed in light of the entire relevant medical history. 38 C.F.R. § 4.1. In evaluating service-connected hearing loss, disability ratings 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 puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz or Hz). The rating schedule establishes eleven 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 puretone audiometry test. The vertical 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 horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85 (2013). The provisions of 38 C.F.R. § 4.86(a) pertain to exceptional patterns of hearing impairment and provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 dB 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) also pertain to exceptional patterns of hearing impairment and provide that when the puretone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. On the authorized audiological evaluation in April 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 65 80 80 LEFT 30 40 45 65 75 The average puretone threshold was 62 in the right ear and 56 in the left ear. (The puretone threshold at 500 Hertz is not used in calculation of the puretone threshold average for evaluative purposes). Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. The audiometric results from April 2012 correspond to Level III hearing in the right ear and level IV in the left ear. 38 C.F.R. § 4.85, Table VI. The combined numeric designations result in a 10 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85 , Table VII. None of the audiometry results show an exceptional pattern of hearing impairment, so they cannot be rated under the alternate criteria in Table VIA, based only on puretone thresholds. See 38 C.F.R. § 4.86. The Veteran's lay assertions that his hearing impairment is greater than reflected by a 10 rating are insufficient to establish this is so. Although the Veteran is competent to report that he has difficulty hearing, he is not competent to establish the actual level of hearing disability by his own opinion. See Barr, 21 Vet. App. at 308-10. This determination is made based on audiometric testing and the rating of hearing loss disability involves the mechanical application of the rating schedule, which here results in a 10 percent rating. See Lendenmann, 3 Vet. App. at 349. This type of medical finding is within the province of a trained medical professional. The Board has considered whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings"). The Board finds that auditory threshold levels in the Veteran's ears have not undergone any increase so as to warrant a disability rating in excess of 10 percent at any time during the appeal period. Accordingly, staged ratings are not warranted. In summary, the Board has considered the benefit of the doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for bilateral hearing loss, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3. The benefit sought on appeal is denied. Tinnitus Service connection for tinnitus was granted in the June 2012 rating decision on appeal, and the RO assigned a 10 percent disability rating under 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran appeals the assignment of the 10 percent rating. He contends that he deserves "a little more" than he is getting, and reiterates that he was exposed to heavy artillery fire in combat. The Board acknowledges the Veteran's combat experiences and does not doubt that he was exposed to heavy artillery fire in service. Nevertheless, the Board must find against the claim. In this regard, under 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, the maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award an increased schedular rating for tinnitus, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). III. Extraschedular Ratings The Board has also considered whether referral for extraschedular ratings is appropriate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his schedular ratings inadequate. With respect to the Veteran's hearing loss and tinnitus disabilities, they have been evaluated under the applicable diagnostic codes that have specifically contemplated the level of occupational impairment caused by those disabilities. The Veteran reported at the April 2012 VA examination that he had difficulty understanding speech, especially on the telephone. He noted that he was required to use the telephone in his current occupation, which could be difficult, depending on the speaker. He described his tinnitus as "annoying." Such impairment with occupational functioning is contemplated by the schedular ratings of 10 percent. Based on consideration of all of the relevant evidence of record, the Board finds that impairment caused by bilateral hearing loss and tinnitus is contemplated by the ratings assigned under Diagnostic Codes 6100 and 6260. In short, there is no indication in the record that the average industrial impairment from the Veteran's bilateral hearing loss or tinnitus would be in excess of that contemplated by the assigned ratings. The Veteran has not described functional effects that are considered "exceptional," or that are not otherwise contemplated by the assigned evaluation. Martinak v. Nicholson, 21 Vet. App. at 455. Therefore, referral for assignment of an extraschedular evaluation is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). IV. TDIU The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raises a claim of entitlement to a TDIU. The Veteran has made no contentions whatsoever, and the record includes no evidence, indicating that his service-connected hearing loss and tinnitus prevent him from obtaining or maintaining substantially gainful employment. Thus, the Board finds that a claim for entitlement to a TDIU is not before the Board at this time. ORDER Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs