Citation Nr: 1335335 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-46 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to an increased rating for residuals of shell fragment wounds, head, with cognitive and emotional/behavioral dysfunction, evaluated as 10 percent disabling throughout the appeal, and with headaches, evaluated as noncompensable, effective October 23, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, granted service connection for bilateral hearing loss, with a noncompensable rating assigned, effective June 25, 2007. The Veteran failed to show for a hearing scheduled for August 2013 without explanation. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). The issue of entitlement to an increased rating for residuals of shell fragment wounds, head, 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 has level I hearing in his right ear and level I hearing in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, Tables VI, VIA and VII, Diagnostic Code 6100; § 4.86 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The documents have been reviewed. Additionally, the Veteran was provided VA examinations in October 2007 and August 2012 to assess the severity of his bilateral hearing loss. In addition to dictating objective test results, a VA audiologist conducting a VA examination must fully describe the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The August 2012 examiner noted the Veteran's complaints, his reported service and medical history, assessed the severity of the hearing loss, discussed the types of situations where his hearing loss would impact him the most as well as the effects his hearing loss would have on occupation and daily activities. Therefore, the examiner fully considered the functional effects of the disability. There is no indication that his claimed bilateral hearing loss has worsened since the August 2012 VA examination. As such, the Board finds that there is no basis to obtain a more current examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007) (mere passage of time not a basis for requiring of new examination). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria-Increased Initial Rating, Hearing Loss 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 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 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. See 38 C.F.R. § 4.7 (2013). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a), (d) (2013). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels 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. 38 C.F.R. § 4.86 (a). When the pure tone thresholds are 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 VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86 (b) (2013). Evidence to be considered in the appeal of an initial disability rating is not limited to that reflecting the current severity of the disorder. In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis During a VA audiological evaluation in October 2007, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 30 40 28 LEFT 20 25 25 40 28 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. Bilateral normal hearing with mild hearing loss at 3000 and 4000 Hertz was diagnosed. During a VA audiological evaluation in August 2012, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 30 35 29 LEFT 20 20 35 40 29 Speech audiometry revealed speech recognition ability of 92 percent bilaterally. Bilateral sensorineural hearing loss was diagnosed. With respect to both ears, the greatest pure tone threshold average was 29 decibels with a speech recognition score of 92 percent. This translates to Level I hearing impairment for each ear under Table VI. Level I hearing impairment in both ears warrants a noncompensable or zero percent rating under the applicable criteria. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). Accordingly, an increased schedular rating is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2013), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability. The Veteran's hearing loss disability is manifested a loss of hearing acuity and the rating criteria are based on such a loss of hearing acuity. 38 C.F.R. § 4.85. It was noted at the August 2012 VA examination that hearing impacted the Veteran's work performance. He described problems hearing with background noise and needing to read lips. These manifestations are contemplated in the rating criteria. His disability is not so unusual and does not require frequent periods of hospitalization or cause marked interference with employment. The rating criteria are, therefore, adequate to evaluate the Veteran's disabilities. Referral for consideration of extraschedular rating is, therefore, not warranted. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has been in receipt of a TDIU, effective from June 2010. The Veteran has not asserted, nor does the evidence demonstrate, that the Veteran was unemployable as a result of his hearing loss disability at any time prior to June 2010. Thus, further consideration of entitlement to a TDIU due to his service-connected hearing loss disability is not warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMAND The Veteran's residuals of shell fragment wounds, head, are evaluated as 10 percent disabling under Diagnostic Code 8045-9304 for cognitive and emotional/behavioral impairment and as noncompensable under Diagnostic Code 8199-8100 for associated headaches/migraines. Diagnostic Code 8045 notes that there are three main areas of dysfunction that may result from traumatic brain injury (TBI) and have profound effect on functioning: cognitive (which is common in various degrees after TBI), emotional/behavioral, and physical. The Diagnostic Code emphasizes that each of these areas may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2013). The Veteran has reported multiple cognitive and emotional symptoms, including memory loss, depression, and difficulty with attention and concentration. An August 2009 VA examiner stated that he would benefit from a mental health evaluation; at the August 2012 VA TBI examination, it was noted that neuropsychological testing had not been performed. The Board finds that one must be provided in order to properly evaluate this disability. The Board notes that cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI are evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet under the same table as cognitive impairment. However, residuals with a distinct diagnosis may be evaluated under another diagnostic code, such as the Veteran's migraine headaches, even if that diagnosis is based on subjective symptoms, rather than under the same table as cognitive impairment as well. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to three, and a fifth level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," because any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage rating is assigned based on the level of the highest facet as follows: zero equals a noncompensable rating; a one equates to a 10 percent; a two equates to a 40 percent; and a three equates to a 70 percent. For example, a 70 percent rating is assigned if three is the highest level of evaluation for any facet. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2013). Note (1) explains that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, only one rating is assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, a separate rating is assigned for each condition. Id, Note (1). (As noted above, the RO has specifically indicated that its rating for a mental disease did not contemplate the memory (cognitive) impairment used to rate under Diagnostic Code 8045.) The symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id, Note (2). "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id, Note (3). Finally, the terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Id, Note (4). Emotional and behavioral TBI symptoms, according to the Diagnostic Code are to be evaluated under 38 C.F.R. § 4.130 for mental disorders. The Board notes that psychiatric disorders also potentially include cognitive dysfunctions as well, including memory, concentration, judgment, decision-making, etc.; the Veteran has alleged several cognitive impairments and such impairments may potentially be evaluated under two different disabilities in this case. Thus, in light of the prohibition against pyramiding in 38 C.F.R. § 4.14, the VA examiner should delineate which emotional/behavioral and cognitive dysfunctions and symptomatology are distinctly associated with an acquired psychiatric disability and which are distinctly associated with his TBI. Given the Veteran's reported symptoms and the VA examiner's opinion that a mental health evaluation would benefit the Veteran, the Board finds that a new VA examination with a qualified physician is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA TBI examination for the purpose of identifying any and all current residuals of service-connected residuals of gunshot wounds, head, and to determine the current severity of any and all such residuals. The claims file must be reviewed by the examiner and the report should note that review. The examiner is requested to perform any and all necessary clinical testing and to render all appropriate diagnoses. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Traumatic Brain Injury Examination, which may require the scheduling of multiple special examinations by appropriate examiners to examine each area of cognitive and physical dysfunction (including neurological dysfunction) that have resulted from the in-service TBI. A mental health evaluation should be included to determine the presence and degree of any depression or other psychiatric symptomatology associated with the TBI. The examiners should identify all conditions residual to TBI and any conditions resulting from such residuals. The examiner should also provide an opinion as to the current severity of any such conditions identified as associated with the TBI residuals. The examiner should also specifically address the Veteran's complaints and report of various symptoms and impairment (cognitive, emotional/behavioral (psychiatric), and physical conditions (including neurological dysfunction)) resulting from his TBI residuals. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The rationale of all opinions provided should be discussed. 2. Based upon review of the entire evidentiary record, to include any evidence pertained pursuant to this remand, the agency or original jurisdiction (AOJ) is requested to consider the assignment of separate evaluations for a psychiatric disability and TBI residuals. Any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 case 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 2002 & Supp. 2012). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs