Citation Nr: 1337281 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-30 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for bilateral hearing loss. 2. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served in the Iowa Army National Guard to include active service from May 1967 to August 1967 and periods of active duty for training and inactive duty training. The Veteran also served in the Iowa Air National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, wherein the RO granted service connection for bilateral hearing loss, assigning an initial 20 percent evaluation, effective August 6, 2010, and granted service connection for tinnitus, assigning an initial 10 percent evaluation, effective August 6, 2010. Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, 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 argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. In his VA Form 9, the stated that the functional impairment resulting from his hearing loss caused some depression. This may reasonably be construed as raising a claim of entitlement to service connection for depression as secondary to service-connected bilateral hearing loss disability. As this matter has not been adjudicated by the RO, and developed for appellate consideration, it is not before the Board at this time, and is referred to the RO for appropriate action. FINDINGS OF FACT 1. The most probative evidence of record reflects that, at its most severe, Veteran's service-connected bilateral hearing loss is manifested by Level VI impairment for the right ear and Level IV impairment for the left ear. 2. The Veteran's tinnitus is assigned the maximum schedular evaluation allowed under the Diagnostic Code 6260 and the disability does not warrant referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for bilateral hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2013). 2. The criteria for an initial evaluation in excess of 10 percent for tinnitus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Duty to Notify The Veteran is appealing the initial evaluations assigned to bilateral hearing loss and tinnitus. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Rather, thereafter, once a notice of disagreement has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3) (2013). The RO provided the Veteran the required SOCs discussing the reasons and bases for not assigning higher initial evaluations and cited the applicable statutes and regulations. Therefore, the duty to notify has been satisfied. Duty to Assist VA has fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claims. The evidence of record contains private medical treatment records. In addition, the Veteran was afforded a VA examination in November 2010. Concerning this, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination to be adequate as it was based on an audiological examination and provides the findings required to evaluate the Veteran's disability in accordance with the rating criteria. The examiner also commented on the functional effects of his hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board notes that the most recent VA examination was dated approximately three years ago. The mere passage of time, alone, is not sufficient to trigger a remand for another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). While the Veteran stated in his notice of disagreement that he expected that it would worsen over time, neither the Veteran nor the evidence has indicated a worsening of his disability since the examination. Therefore, the evidence of record is sufficient and a remand for a new VA examination is not required. See 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). A disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The period for consideration on appeal of the claim for an initial evaluation in excess of 20 percent for bilateral hearing loss and the claim for an initial evaluation in excess of 10 percent for tinnitus is from August 6, 2010, the date of receipt of the claim for service connection. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Tables VI, VIA (2013). The results of the puretone audiometry test and speech discrimination test are charted on Table VI or Table VIA for exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 when an exceptional pattern of hearing loss is shown. Under Diagnostic Code 6260, a maximum evaluation of 10 percent is warranted for tinnitus, recurrent. Analysis - Initial Evaluation for Bilateral Hearing Loss The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the claim period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claims. In his VA Form 9, the Veteran stated that his hearing loss was more than not hearing people talk. It was about isolation and he was not as social as he would like to be. In his notice of disagreement, he explained that even when he used hearing aids, he still had trouble understanding and this made group conversations difficult. He stated that it made work difficult and social relations hard to deal with. A September 2010 audiological evaluation shows that the Veteran had trouble hearing normal conversational speech, especially when background noise was present. The puretone threshold average was 60 decibels in the right ear and 53 decibels (elevated from 52.5 decibels) in the left ear. The speech recognition scores measured using the Maryland CNC Word list was 76 percent for the right ear and 84 percent for the left ear. The results do not reflect that the Veteran had an exceptional pattern of hearing impairment as outlined in 38 C.F.R. § 4.86(a) or (b). Under Table VI, the right ear is assigned a Level IV impairment and the left ear is assigned a Level II impairment. When applied to Table VII, an evaluation in excess of 20 percent is not warranted. With respect to the aforementioned audiological evaluation, the Board recognizes that the graph was not interpreted. However, the examining physician provided the average puretone threshold averages for the pertinent Hertz levels for each ear, which is used to evaluate the Veteran's bilateral hearing loss in accordance with the rating criteria. 38 C.F.R. § 4.85, Table VI. The Board interpreted the graph to ascertain whether application of the provisions of 38 C.F.R. § 4.86, exceptional pattern of hearing impairment, was appropriate. The Board was permitted to do so as the graph is clear in terms of whether the Veteran exhibited decibel readings of 55 or higher in each auditory threshold or whether there was a reading of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing); see also Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record). The Veteran was provided a VA examination in November 2010. The Veteran reported that he had difficulty hearing. The functional impairment included difficulty hearing and understanding speech. The effect of the condition on the claimant's usual occupation was that he had difficulty hearing and understanding speech. The effect of the condition on the daily activity was that he had difficulty hearing and understanding speech. While air conduction and bone conduction audiometric results were provided for each ear, the VA examiner noted that an air examination study is better than a bone conduction study to relect the claimant's hearing loss. The pertinent air conduction audiometric results were: HERTZ 1000 2000 3000 4000 RIGHT 50 60 70 70 LEFT 15 60 65 65 The puretone threshold average for the right ear was 63 decibels (elevated from 62.5 decibels) and 51 decibels for the left ear (recorded as 51.25 decibels on examination). The speech recognition score was 64 percent in the right ear and 80 percent in the left ear. The results do not reflect an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. Under Table VI, the right ear is assigned a Level VI impairment and the left ear is assigned a Level IV impairment. When applied to Table VII, a 20 percent evaluation, but no higher, is warranted. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran can attest to factual matters of which he has first-hand knowledge, e.g., difficulty understanding speech and hearing difficulties. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is sufficient to warrant an evaluation in excess of 20 percent under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise and knowledge which he has not been shown to possess. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Again, the evidence does not reflect a period in which a higher evaluation for the Veteran's service-connected bilateral hearing loss would be warranted and, therefore, staged ratings are not appropriate. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In light of the above, the preponderance of the evidence is against the claim. The benefit of the doubt rule does not apply and entitlement to an initial evaluation in excess of 20 percent for service-connected bilateral hearing loss is denied. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Analysis - Initial Evaluation for Tinnitus The September 2010 audiological evaluation shows that the Veteran described his tinnitus as a constant, dull motor sound. The November 2010 VA examination report shows that the Veteran reported constant ringing in both ears. The examiner listed a diagnosis of mild to moderate bilateral constant tinnitus. The subjective factors are that the Veteran heard constant ringing in both ears. The Veteran's tinnitus does not warrant an evaluation in excess of 10 percent. The evaluation of 10 percent is the maximum evaluation available under Diagnostic Code 6260. See 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral); VAOPGCPREC 2-2003 (Diagnostic Code 6260 authorizes a single schedular 10 percent disability rating for tinnitus, regardless of whether the tinnitus is perceived as unilateral or bilateral). The evidence does not indicate that the severity of Veteran's tinnitus has fluctuated throughout the claim period to warrant staged ratings. Thus, the assignment of staged ratings is not appropriate. See Fenderson, supra. In this case, there is a lack of entitlement under the law and the claim for an initial evaluation in excess of 10 percent for tinnitus is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Extraschedular Consideration The Board also has considered whether the Veteran is entitled to referral of the increased rating issues for assignment of a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability evaluation is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 evaluation. 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 evaluations for the disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, as discussed above. A comparison between the severity and symptoms of tinnitus are found in the rating schedule and the rating criteria reasonably describe the disability level and symptoms. The Board further observes that, even if the available schedular evaluations for the disabilities are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his hearing loss or tinnitus. There is no persuasive evidence in the record to indicate that the disabilities on appeal would cause impairment with employment over and above that which is already contemplated in the assigned schedular evaluations. The Board acknowledges that the Veteran's disabilities have an impact on employment. The Veteran stated that he was isolated due to his hearing loss, and makes work difficult. The effects on his occupation as reported by the VA examination are difficulty hearing and understanding speech. With respect to tinnitus, the Veteran reported a constant ringing. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Here, the symptoms experienced by the Veteran are not considered to be exceptional or unusual and are taken into account by his current evaluations. The evidence does not reflect that the Veteran experiences marked impairment with employment to warrant referral for extraschedular consideration. Therefore, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent for service-connected bilateral hearing loss is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs