Citation Nr: 1334596	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  12-09 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

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

2.  Entitlement to an initial compensable evaluation for bilateral hearing loss.  


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel



INTRODUCTION

The Veteran served on active duty from June 1968 to June 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for bilateral hearing loss and tinnitus, and assigned initial noncompensable and 10 percent ratings, respectively, effective November 20, 2009.

The Board notes that, in an April 2012 statement, the Veteran alleges that he should have been compensated for his hearing difficulties prior to the date he filed his claim, i.e., since 1968.  Such allegations appears to be tantamount to a claim for an effective date prior to November 20, 2009, for the award of service connection for bilateral hearing loss and tinnitus.  However, in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE).  The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date.  When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed.  Id. at 299-300.  Therefore, the Veteran is advised that the only way for him to claim entitlement to an effective date prior to November 20, 2009, for the award of service connection for bilateral hearing loss and tinnitus is by alleging CUE, with specificity, in the June 2010 rating decision that awarded service connection for such disabilities.  Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); see also 38 C.F.R. § 20.1104 (2013). 

The issue of entitlement to an initial compensable rating 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's service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating under the applicable rating criteria, and the rating schedule is adequate to evaluate such disability.


CONCLUSION OF LAW

The assignment of an initial evaluation in excess of 10 percent for tinnitus is not warranted.  38 U.S.C.A. § 1155; (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2013)).

However, in Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (Aug. 30, 2001), the Court held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter.  See also VAOGCPREC 5-2004, Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001), and Mason v. Principi, 16 Vet. App. 129, 132 (2002) (stating that the VCAA is not applicable 'because the law as mandated by statute and not the evidence is dispositive of the claim'). 

The Board finds in the instant case that resolution of the issue on appeal is based on the operation of law and that the VCAA is not applicable.  See Holliday v. Principi, 14 Vet. App. 280, 282-83 (2001) (finding that the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim).

II.  Higher Initial Rating

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by the application of VA's 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 the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.

A 10 percent evaluation is currently assigned to the Veteran's tinnitus, effective November 20, 2009, pursuant to 38 C.F.R. § 4.84, Diagnostic Code 6260.  The Veteran is seeking a higher evaluation.

The Board notes that tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2013).

Prior to that date, recurrent tinnitus was also rated 10 percent disabling, which was the highest schedular rating assignable.  A note following the former regulation provided:

A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.

38 C.F.R. § 4.87, Diagnostic Code 6260 (2002).

The changes to Diagnostic Code 6260 were interpretive only; they merely codified VA's practice of assigning only a single 10 percent evaluation for tinnitus, even where the sound is perceived in both ears.  In other words, VA's comments merely explained or clarified the Department's intent in providing a single 10 percent disability rating under Diagnostic Code 6260.  In fact, the proposed amendment explicitly stated that no substantive change was involved.  See 67 Fed. Reg. 59,033 (September 19, 2002).

The Court challenged the Board's understanding of the July 2003 amendment as being merely interpretive in Smith v. Nicholson, 19 Vet. App. 63 (2005).  In that case, the Court reversed a Board decision that found that, under pre-June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral.  The Court held that pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required that VA assign dual 10-percent ratings for 'bilateral' tinnitus where it was perceived as affecting both ears.

VA appealed the Court's decision in Smith to the United States Court of Appeals for the Federal Circuit (Federal Circuit).  The Federal Circuit reversed the Veterans Court's decision in Smith, and affirmed VA's long-standing interpretation of Diagnostic Code 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 Supreme Court precedent, the Federal Circuit explained 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.  Id.  Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation.  

In the case currently on appeal, the Board notes that the RO assigned the Veteran a 10 percent evaluation for his service-connected tinnitus.  The effective date of the award of 10 percent for tinnitus is after the date of the June 13, 2003, amendment to the rating code.  Thus, a 10 percent rating is clearly the maximum rating assignable for the Veteran's tinnitus, and an increased schedular rating is not available.

As clearly stated above, Diagnostic Code 6260 assigns only a single evaluation for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2013).  Therefore, the Veteran cannot be assigned an evaluation in excess of 10 percent for both ears.

Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  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, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.'  Third, if the rating schedule is inadequate to evaluate a Veteran'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 extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected tinnitus is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  Specifically, according to the January 2010 VA examination report, the Veteran has episodes of tinnitus a few times per year, with each episode lasting a few hours.  Indeed, the Veteran has not identified any symptoms not contemplated in the current 10 percent rating under Diagnostic Code 6260.

There is also no evidence in the medical records or in the January 2010 VA examination report of an exceptional or unusual clinical picture.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

In summary, with regard to assigning a schedular evaluation in excess of 10 percent, as noted above, the disposition of the claim for a higher schedular rating is based on the law, and not the facts of the case.  As such, the claim must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  With regard to the possibility of assigning an extraschedular evaluation, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for the Veteran's tinnitus on an extraschedular basis.  

The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  See Fenderson, supra.


ORDER

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


REMAND

The Veteran has also claimed entitlement to an initial compensable rating for his service-connected bilateral hearing loss.  Following a review of the record, the Board finds it necessary to remand this claim for additional development.

Specifically, the Board notes that the Veteran last underwent VA audiological examination in January 2010 and that there is evidence that the Veteran's hearing loss disability has increased in severity since that examination.  The January 2010 examination report notes audiogram findings as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
10
25
65
LEFT
10
5
10
40
60

The puretone threshold average was 25 decibels in the right ear and 28.75 decibels in the left ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  

In the course of his appeal, the Veteran submitted a private audiological evaluation dated in October 2011.  That report indicates the following findings:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
30
65
90
LEFT
30
20
20
35
70

The puretone threshold average was 51.25 decibels in the right ear and 36.25 decibels in the left ear.  Word recognition testing was noted to have been 100 percent in each ear; however, it is unclear whether the Maryland CNC word recognition test was utilized.  38 C.F.R. § 4.85(a) requires that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  Therefore, such examination report may not be used to rate the Veteran's bilateral hearing loss.  Even so, the demonstrated increase in puretone readings suggests a possible worsening of the Veteran's hearing loss since the January 2010 VA examination.  Additionally, the Veteran has also alleged that, since such examination, his physician has recommended that he be fitted for hearing aids.

The Court has held that a Veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last examination.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  As such, given the indications of a possible worsening of the Veteran's service-connected hearing loss disability since January 2010, the Board finds it necessary to remand this claim for a new VA examination in order to assess the current severity of the Veteran's bilateral hearing loss.

The Board also observes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, as 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.  As such, the VA examiner should be requested to comment on the functional effects the Veteran experiences as a result of his bilateral hearing loss.  The examiner should also describe the impact that the Veteran's bilateral hearing loss has on his employability. 

Additionally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his bilateral hearing loss.  Thereafter, all identified records should be obtained 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 VA or non-VA healthcare provider who has treated him for his bilateral hearing loss.  Thereafter, all identified records should be obtained for consideration in the Veteran's appeal.  The notification requirements of 38 C.F.R. § 3.159(c)(1) should be followed with respect to any private medical evidence identified by the Veteran.  If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them.  All efforts to obtain these records should be recorded in the claims folder.

2.  After all outstanding records have been associated with the claims file, the Veteran should be afforded a VA audiological examination in order to determine the current nature and severity of his bilateral hearing loss. The examiner should review the claims file. The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores.  Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted.  

The examiner is specifically requested to describe the functional effects caused by the Veteran's bilateral hearing loss.  The examiner should also describe the impact that the Veteran's bilateral hearing loss has on his employability.  Any opinion expressed should be accompanied by supporting rationale.   

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 increased rating 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, 7112 (West Supp. 2013).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs