Citation Nr: 1334240 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-08 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the U.S. Coast Guard from January 1960 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that, in a January 2012 statement, the Veteran appears to indicate that he wishes to withdraw his pending appeal. Specifically, he indicates that he would like his file returned to the RO and his compensation increased to 30 percent from 10 percent. He then requests that his appeal be withdrawn as soon as possible and that it be acted upon it so he may receive an answer, for which he has been waiting since 2009. While such statement specifically requests the withdrawal of the Veteran's pending appeal, it also requests that a decision be made. Due to the conflicting statements contained within such document as well as the subsequent submission of his representative's Appellant's Brief in September 2013, the Board finds that the Veteran has not expressly withdrawn his appeal and will proceed with the adjudication of the pending claims. 38 C.F.R. § 20.204 (2012). In his March 2010 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. Therefore, in an August 2011 letter, he was informed that his requested hearing had been scheduled for October 2011. Thereafter, in September 2011 correspondence, the Veteran withdrew his request for a Board hearing and requested that his case be forwarded to the Board. 38 C.F.R. § 20.704(e). As relevant to the Veteran's claim for service connection for bilateral hearing loss, the Board observes that the April 2009 rating decision characterized such as an application to reopen a previously denied claim. A review of the record reveals that such claim was initially denied in a January 2007 rating decision. At time of such decision, the Veteran's service treatment records (STRs) were not available. Subsequently, the Veteran's STRs were received in March 2010, as confirmed in the January 2011 supplemental statement of the case. Also, his service personnel records are now on file. Regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. In the instant case, the newly received STRs show that the Veteran was not afforded audiometric testing on examinations for service entrance or service discharge, but was hospitalized for otitis externa. As such pathology may be relevant to a current hearing loss (and a VA examination has found that he had a hearing loss in the right ear consistent with middle ear pathology), the Board finds that such STRS fall within the scope of 38 C.F.R. § 3.156(c)(1)(i). Therefore, the claim for service connection for bilateral hearing loss is recharacterized, as stated on the title page, and will be addressed on a de novo basis. Claims for VA pension benefits and entitlement to special monthly pension by reason of being housebound have been raised by the record. See Report of General Information of January 25, 2013 (contained in Virtual VA). While these benefits are predicated upon the Veteran's active service during wartime, and here the Veteran had only peacetime service, it does not appear that the agency of original jurisdiction (AOJ) has had an opportunity to adjudicate such claims. The Board does not have jurisdiction over the claims, and they are thus referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the Veteran's representative's September 2013 Appellant's Brief. The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran is in receipt of a 10 percent rating for his tinnitus, which is the maximum schedular rating under the applicable rating criteria, and the rating schedule is adequate to evaluate such disability. CONCLUSION OF LAW There is no legal basis for the assignment of a rating in excess of 10 percent for tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, DC 6260 (2012); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a February 2009 letter, sent prior to the initial unfavorable decision issued in April 2009, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records, post-service VA treatment records, and records from the Social Security Administration (SSA) have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in March 2009 and March 2010 in conjunction with the claim on appeal. Neither the Veteran nor his representative has alleged that such are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected tinnitus as they include an interview with the Veteran, a review of the record, and a full audiological examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. §§ 4.7, 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform ratings are proper for all disabilities for which an increased rating is being claimed in this appeal. Under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 the sole and maximum schedular rating for recurrent tinnitus is 10 percent. Note 1 to DC 6260 provides that a separate evaluation for tinnitus may be combined with an evaluation under DCs 6100(hearing loss), 6200 (otitis media), 6204 (peripheral vestibular disorders), or other DC, except when tinnitus supports an evaluation under one of those DCs. Note 2 provides that only a single evaluation is to be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. Note 3 provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not to be evaluated under DC 6260, but evaluate it as part of an underlying condition causing it. The Veteran seeks an evaluation in excess of 10 percent for recurrent tinnitus. Tinnitus is evaluated under 38 C.F.R. § 4.87, DC 6260, which provides for a 10 percent rating. As indicated previously, Note 2 to DC 6260 specifically provides that only a single evaluation is to be assigned, whether the sound is perceived as being in one ear, both ears, or in the head. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). In this case the evidence does not establish, and it is not alleged, that the Veteran had objective tinnitus (as defined in Note 3 to DC 6260) which is perceived by others, and here the Veteran is not service-connected for otitis media or peripheral vestibular disorder. As the current version of DC 6260 specifically prohibits a schedular evaluation in excess of a single 10 percent rating for tinnitus, however perceived, i.e., in one ear, both ears or in the head, an evaluation in excess of 10 percent for recurrent tinnitus is not warranted as a matter of law in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his tinnitus and the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability has been more severe than the assigned disability rating reflects. Moreover, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. However, he has been assigned the maximum schedular rating allowable under the law. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected tinnitus; however, the Board finds that because he has been assigned the maximum schedular rating allowable by law staged ratings are not permitted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected tinnitus with the established criteria found in the rating schedule. In this regard, the record reflects that the Veteran's tinnitus is manifested by ringing in the ears. The Board notes that tinnitus, which is defined as a noise in the ears, such as ringing, buzzing, roaring, or clicking, is evaluated as 10 percent disabling under the rating schedule when such is recurrent, regardless of whether it is perceived in one ear, both ears, or in the head. See Dorland's Illustrated Medical Dictionary, 30th edition, p. 1914; 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). There are no additional symptoms of the Veteran's tinnitus that are not addressed by the rating schedule. Therefore, the Board finds that such symptomatology is fully addressed by the rating criteria under which such disability is rated. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Additionally, there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In the instant case, SSA records show that the Veteran left his employment due to nonservice-connected musculoskeletal disability. Also, the March 2009 VA examiner opined that the tinnitus caused no significant occupational impact. Therefore, the Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and, consequently, further consideration of such is not necessary. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for tinnitus. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 10 percent for tinnitus is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim of entitlement to service connection for bilateral hearing loss so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The STRs show that, while the Veteran was never afforded audiometric testing of his hearing acuity, he was hospitalized in March 1960 for an upper respiratory infection and bilateral otitis externa. However, he now claims that his current hearing loss is due to in-service acoustic trauma on a firing range during boot camp. In VA Form 21-4138 in October 2006, the Veteran recited the places he had had military duty during service and reported that he had been told by two VA physicians at the Dorn VA Medical Center that it was their opinion that his hearing loss was due to his military service. The Veteran was provided with a VA examination as to his hearing loss claim in December 2006, but no opinion could be rendered because medical records and the claim file were not available to that examiner and it was noted that the Veteran had both civilian and military noise exposure. In January 2007, the claims file was provided to the VA examiner and he offered an addendum opinion. He indicated that there were no STRs in the claims file and, therefore, there was no documentation of hearing loss. It was again noted that the Veteran had both military and civilian noise exposure in that he worked in a mill in a wave room and around machinery. Therefore, the examiner determined that he could not resolve such issue with resort to mere speculation. A March 2009 VA examination did not yield an opinion as to etiology or cause of any current hearing loss, and on examination in March 2010 it was recommended that a specialist render an opinion. This was done at the time of a January 2011 VA examination. The diagnoses were (1) status post right tympanoplasty and mastoidectomy in 2007 with good results, (2) bilateral sensorineural hearing loss with significant high tone loss which had no relationship to the 2007 ear surgery, and (3) no current evidence of acute activity as far as any cholesteatoma or other ear disease. In the July 2011 Statement of Accredited Representative (in Lieu of VA Form 646) it was noted that the Veteran had been afforded VA examinations as to his hearing loss in March 2009 and again in 2011 and at the latter examination a negative opinion was rendered as to any nexus between current hearing loss and the Veteran's VA right ear surgeries in March and October 2007. However, it was requested that the Veteran be afforded a VA examination for the purpose os determining whether the Veteran's in-service exposure to loud noise, which was the premise for the January 2007 grant of service connection for tinnitus, is also the cause of his current hearing loss. The Board concurs that such an opinion is warranted in this case. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, in accordance with the duty to assist, a remand is necessary in order to obtain an addendum opinion regarding whether the Veteran's bilateral hearing loss is related to his in-service noise exposure. Additionally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his hearing loss. In particular, the Veteran should be requested to identify the two VA physicians at the Dorn VA Medical Center whom he has reported were of the opinion that his current hearing loss was related to military service. He should be request to obtain from those physicians a written report addressing this matter. Thereafter, all identified records should be obtained and associated with the claims file for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his hearing loss. In particular, the Veteran should be requested to identify the two VA physicians at the Dorn VA Medical Center whom he has reported were of the opinion that his current hearing loss was related to military service. He should be request to obtain from those physicians a written report addressing this matter. After securing any necessary authorization from him, obtain all identified records. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been associated with the claims file, return the claims file to the VA examiner who offered the January 2011 opinion. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the January 2011 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should offer an opinion as to whether any current hearing loss in either or both ears is at least as likely as not related to the Veteran's military service, to include his in-service ear infections and/or exposure to loud noise from gunfire. In offering any opinion, the examiner must consider the full record, to include STRs, past VA examination reports, and the statements of the Veteran and his wife. Also, the examiner should consider the opinion expressed at the March 2009 examination that the Veteran's tinnitus was as likely as not associated with the hearing loss. The examiner should explain the reasoning for every opinion provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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, 7115 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs