Citation Nr: 1335072	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  11-30 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

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

2.  Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Brian L. Marlowe, Attorney


ATTORNEY FOR THE BOARD

A. Hinton, Counsel



INTRODUCTION

The Veteran served on active duty from March 1982 to August 1991.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection and assigned disability ratings of 10 percent each for tinnitus and for bilateral hearing loss.  

In October 2010, the Veteran testified at the RO before a Decision Review Officer of the RO. 

The Veteran filed a notice of disagreement initiating an appeal from the May 2009 rating decision as to the effective date assigned by the RO in granting service connection for vestibular disorder associated with bilateral hearing loss.  Following a September 2012 rating decision granting an earlier effective date, in August 2013 the Veteran through his representative withdrew the claim.  Thus that claim is no longer in appellate status.

The issue of entitlement to an initial disability rating in excess of 10 percent 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, DC.


FINDING OF FACT

The Veteran experiences tinnitus in each ear, for which the maximum schedular rating of 10 percent is assigned.



CONCLUSION OF LAW

There is no legal basis for the assignment of a disability rating in excess of 10 percent for tinnitus.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, Diagnostic Code 6260 (2013); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).


Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

Further notice or assistance under The Veterans Claims Assistance Act of 2000 (VCAA) is not required, because the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based only on statutory interpretation, rather than consideration of the factual evidence, which is the case here.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because no reasonable possibility exists that would aid in substantiating this claim for increase in rating, any deficiencies of VCAA notice or assistance are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran claims entitlement to a disability rating in excess of 10 percent for his tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260, provides for a 10 percent disability rating for recurrent tinnitus.  That rating is the maximum assignable for tinnitus under Diagnostic Code 6260, and it applies whether the sound is perceived in one ear, both ears, or in the head.  See Note (2) following 38 C.F.R. § 4.87, Diagnostic Code 6260.  The facts are not in dispute.  Resolution of the Veteran's appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus.  

In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single schedular disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted.  

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus.  38 C.F.R. §4.87, Diagnostic Code 6260.  Regardless of whether the Veteran's tinnitus is perceived as unilateral or bilateral-in one or both ears-a single 10 percent rating is the maximum rating assignable under either case.  Id.

As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, or for that matter, an evaluation in excess of 10 percent on any basis, the Veteran's appeal is not warranted.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  The law, and not the underlying facts are dispositive in this matter.  



ORDER

Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. 


REMAND

The Veteran claims entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss.  A remand is necessary for the following reasons.  First, the 10 percent rating is based on audiology findings contained in an April 2009 VA examination report.  Review of those pure tone threshold findings as evaluated under 38 C.F.R. § 4.85 and 4.86, results in a 10 percent disability rating calculated using the mechanical formula contained in these pertinent sections.  

However, the Veteran has submitted a privately performed audiogram conducted in January 2009, that contains audiometric findings of pure tone hearing threshold levels, but only in graphic form; there are no numeric findings in that report.  Visual review of the graphic findings of pure tone hearing threshold levels contained in the January 2009 audiology report clearly indicates that the Veteran's hearing was worse than as shown in the April 2009 VA examination report at all but one threshold level for the right ear and at all levels for the left ear.  

But even though it reflects more severe hearing loss disability, because the private audiogram is in graphic form, and because it does not clearly include statistics for speech discrimination-generally necessary to determine numeric designations of hearing impairment-the private audiogram cannot be used to evaluate the Veteran's hearing under the relevant diagnostic criteria of 38 C.F.R. § 4.85 and 4.86.  

Nonetheless, the disparity between findings at the April 2009 VA examination and the January 2009 private audiogram raises the question of what is the current level of disability of the Veteran's bilateral hearing loss disability.  

Also, during the Veteran's October 2010 RO hearing, his representative referred to certain existing VA treatment records that include a December 2009 audiological evaluation, which he described to note that word recognition scores were at 68 percent at that evaluation.  The associated VA treatment records to which the representative referred are not on file in the claims file or available electronically.  

Given that the April 2009 VA examination report shows speech recognition scores of 88 percent for each ear, the indicated December 2009 findings of 68 percent reflects a worsening of the Veteran's bilateral hearing loss disability since the last VA examination of April 2009.  

Thus any such VA treatment records must be obtained as well as any other relevant private treatment records.  Thereafter, the Veteran should undergo VA examination to clarify the current level of disability due to his bilateral hearing loss disability. 
 
In sum, the Veteran has testified, and the evidence appears to indicate, that his service-connected bilateral hearing loss has worsened since he was last examined by VA.  The Veteran's service-connected hearing loss claim must be remanded for the Veteran to undergo a contemporaneous and thorough VA examination to determine the current severity of his bilateral hearing loss.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify all medical care providers who evaluated or treated him for his bilateral hearing loss.  Request copies of any pertinent private or VA medical records not currently of record from all sources identified.

2.  Schedule the Veteran for a VA audiologic examination to determine the severity of the Veteran's bilateral hearing loss.  The claim file must be made available to the examiner in conjunction with the examination and such must be noted in the examination report.

3.  Then, readjudicate the claim.  If the determination remains unfavorable to the appellant, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable time period in which to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The appellant 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 of Veterans' Appeals 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. 2012).




______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs