Citation Nr: 1333714	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  09-02 401	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an initial disability rating (evaluation) for tinnitus in excess of 10 percent.

2.  Entitlement to an initial compensable disability rating (evaluation) for bilateral hearing loss.   


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Ferguson, Counsel



INTRODUCTION

The Veteran, who is the appellant, had active service from April 1972 to June 1975.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case.


FINDINGS OF FACT

1.  The Veteran's tinnitus is manifested by constant ringing in the ears or head.  

2.  Tinnitus has been assigned the maximum 10 percent schedular rating available under Diagnostic Code 6260 for the entire initial rating period on appeal.

3.  For the entire rating period, the evidence demonstrated no worse than a Level III hearing acuity in the service-connected right ear and no worse than a Level V hearing acuity in the service-connected left ear.

4.  The Veteran's hearing loss disability was not compensable at any time during the rating period.  


CONCLUSIONS OF LAW

1.   The criteria for an initial disability rating for tinnitus in excess of 10 percent are not met for the entire rating period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.87, Diagnostic Code (DC) 6260 (2013).

2.  The criteria for an initial compensable disability rating for bilateral hearing loss are not met for the entire rating period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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).  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.  38 C.F.R. 
§ 3.159(b)(1).  This 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).  

In this case, the Veteran is challenging the initial disability ratings assigned following the grant of service connection for tinnitus and hearing loss in the June 2006 rating decision.  The U.S. Court of Appeals for Veterans Claims (Court) has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007).  Furthermore, under 38 C.F.R. 
§ 3.159(b)(3)(i), there is no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case.  For these reasons, the Board finds that no further notice, beyond that afforded in the context of the claim for service connection, is needed under the VCAA.  

Regarding VA's duty to assist in claims development, in June 2006, October 2008, and March 2013, the RO provided the Veteran with VA medical examinations in connection with the initial rating appeals.  The VA medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's appeal.  The VA medical examiners took a thorough history of the disability from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment.  The VA medical examiners had adequate facts and data regarding the history and condition of the disabilities.  See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran).  The VA medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on his daily life and performed a thorough evaluation of the Veteran.  There has been no allegation or indication that there has been a material change in condition of the Veteran's hearing loss disability since the last VA medical examination.  For these reasons, the Board finds that the VA examination reports are adequate for rating purposes, and there is no need for further examination.

Also, the Veteran's complete service treatment records and post-service treatment records adequately identified as relevant to the appeal have been obtained, or otherwise submitted, and are associated with the record.  The additional treatment records pertinent to the appeal found in the Virtual VA folder were considered by the RO in the first instance.  See January 2013 and June 2013 Supplemental Statements of the Case.  

The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained.  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 in developing the facts pertinent to the appeal.  In view of the foregoing, the Board will proceed with appellate review. 

Tinnitus and Hearing Loss Disability Rating Legal Criteria

Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of a veteran's claim is to be considered.  In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2.

Initial Rating Analysis for Tinnitus

For the entire rating period, the Veteran's tinnitus has been rated at the maximum 10 percent rating under the criteria found at 38 C.F.R. § 4.87, DC 6260 for recurrent tinnitus.  Upon review, the Board finds that no other diagnostic code or rating schedule would be appropriate in the evaluation of the Veteran's tinnitus disability. 

Tinnitus is evaluated under DC 6260, which provides a maximum 10 percent disability rating for recurrent tinnitus.  38 C.F.R. § 4.87, DC 6260.  Note (2) following DC 6260 further explains that the Board must assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA's long-standing interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Citing U.S. Supreme Court precedent, the Federal Circuit explained in Smith that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations.  Finding that there was a lack of evidence in the record suggesting that VA's interpretation of DC 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the Veterans Court had erred in not deferring to VA's interpretation.  

In view of the foregoing, the Board concludes that the regulations preclude a schedular evaluation in excess of a single 10 percent rating for tinnitus.  Therefore, the Veteran's claim for a disability rating greater than 10 percent for tinnitus under DC 6260 must be denied.  As disposition of this appeal is based on the law and not the facts of the case, the appeal must be denied based on a lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


Initial Rating Analysis for Hearing Loss

For the entire rating period, the Veteran's bilateral hearing loss disability has been rated noncompensable (i.e., at 0 percent) under the rating criteria found at 38 C.F.R § 4.85, DC 6100.  Hearing loss is evaluated under 38 C.F.R. §§ 4.85, Diagnostic Code 6100, Tables VI, VIA, VII of VA's rating schedule.  Upon review, the Board finds that no other diagnostic code or rating schedule would be appropriate in the evaluation of the Veteran's hearing loss disability. 

The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  38 C.F.R. § 4.85.

When the puretone 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 VI A, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a). 

When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI A, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  38 C.F.R. § 4.86(b). 

After review of all the lay and medical evidence of record, the Board finds that the evidence is against finding that an initial compensable disability rating for hearing loss is warranted for the entire rating.  At the June 2006 VA audiology examination, pure tone thresholds, in decibels, were recorded as follows:  





HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
40
40
LEFT
45
45
55
55
60

Pure tone threshold averages were 30 for the right ear and 54 for the left ear.  Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 68 percent in the left ear.  

Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the June 2006 VA audiology examination reveal Level I hearing acuity in the service-connected right ear (with a pure tone threshold average of 30 dB and speech discrimination score of 92 percent) and Level V hearing acuity in the service-connected left ear (with pure tone threshold average of 54 dB and speech discrimination score of 68 percent).  According to Table VII under Diagnostic Code 6100, a 0 percent disability rating is warranted for the level of hearing impairment demonstrated at the June 2006 VA audiology examination.  38 C.F.R. § 4.85.  

Audiometric results from the October 2008 and March 2013 VA audiological examinations similarly show a noncompensable (i.e., 0 percent) level of hearing impairment.  At the October 2008 VA audiology examination, pure tone thresholds, in decibels, were recorded as follows:  





HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
30
35
LEFT
30
35
35
45
45

Pure tone threshold averages were 26 for the right ear and 40 for the left ear.  Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 80 percent in the left ear.  

Under the guidelines set forth in 38 C.F.R. § 4.85, the audiometric results from the October 2008 VA audiology examination reveal Level III hearing acuity in the service-connected right ear (with a pure tone threshold average of 26 dB and speech discrimination score of 76 percent) and Level III hearing acuity in the service-connected left ear (with pure tone threshold average of 40 dB and speech discrimination score of 80 percent).  According to Table VII under Diagnostic Code 6100, a 0 percent disability rating is warranted for the level of hearing impairment demonstrated at the October 2008 VA audiology examination.  38 C.F.R. § 4.85.  

At the March 2013 VA audiological examination, pure tone thresholds, in decibels, were recorded as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
40
50
50
LEFT
45
50
65
75
75

Pure tone threshold averages were 44 for the right ear and 66 for the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear.  

Under the guidelines set forth in 38 C.F.R. § 4.85, the March 2013 VA audiometric results reveal that the Veteran demonstrated Level I hearing acuity in the service-connected right ear (with a pure tone threshold average of 44 dB and speech discrimination score of 96 percent) and a Level III hearing acuity in the service-connected left ear (with pure tone threshold average of 66 dB and speech discrimination score of 88 percent).  According to Table VII under Diagnostic Code 6100, the current noncompensable (i.e., 0 percent) disability rating is warranted for the level of hearing impairment demonstrated at the VA audiological examination.  38 C.F.R. § 4.85.  

Treatment records relevant to the rating period do not include audiometric data showing that the hearing loss disability meets the criteria for a compensable rating.  No exceptional patterns of hearing impairment as defined by 38 C.F.R. § 4.86 are shown during the rating period.  Although the VA medical examination reports during the rating period show a fluctuation of severity of hearing impairment in both the right and left ears, significantly, the Board notes that the evidence demonstrated a noncompensable (0 percent) level of hearing as recorded by audiometric testing and speech recognition testing at the various VA examinations.  In consideration of the foregoing, the Board finds that the weight of the evidence is against finding that a higher (i.e., compensable) rating for hearing loss is warranted for the entire rating period for any period.  

Extraschedular Consideration for Tinnitus and Hearing Loss Analysis

The Board has further considered whether the initial rating appeals warrant referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321.  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, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria.  If those criteria are not inadequate, the analysis does not need to proceed any further.

In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the current 10 percent schedular rating for tinnitus and noncompensable rating for hearing loss for the entire rating period.  The Veteran has reported that he has constant ringing in the ears and difficulty hearing to the point where he often has to ask others to repeat their words.  

Regarding hearing loss, 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 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.  Regarding tinnitus, the rating criteria specifically contemplate sound perceived in one ear, both ears, or the head.  

Accordingly, the Board finds that the Veteran's functional impairment due to tinnitus and hearing loss are fully considered by the schedular rating criteria.  Hearing loss disability that is affected by background or environmental noise is a disability picture considered in the current schedular rating criteria; therefore, the Veteran's difficulty hearing conversations, either over the phone or in person, or for hearing other noises is a factor contemplated in the regulations and rating criteria as defined.  The Veteran's constant ringing in the ears or head is contemplated by the rating criteria for recurrent tinnitus.  The 10 percent rating for tinnitus and 0 percent rating for bilateral hearing loss fully consider the symptoms and functional impairment resulting from the disabilities.  The Board finds that the Veteran's complaints of hearing difficulty and constant tinnitus, as well as the functional impairment associated therewith, have been considered under the criteria set forth in the rating schedule.  As the rating criteria reasonably describe the Veteran's disability levels and symptomatology for tinnitus and hearing loss, referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

TDIU Consideration Analysis

The Court, in Rice v. Shinseki, 22 Vet. App. 447 (2009), held that a claim for a total rating based on individual unemployability due to service- connected disability (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.  In this case, the Veteran has not contended, and the record does not otherwise suggest, that the bilateral hearing loss and tinnitus disabilities render him unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised by the Veteran or the evidence of record.


ORDER

An initial disability rating (evaluation) for tinnitus in excess of 10 percent is denied.

An initial compensable disability rating (evaluation) for hearing loss is denied.   




____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs