Citation Nr: 1337536	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  11-32 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss.

2.  Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus.


ATTORNEY FOR THE BOARD

J. Owusu-Asiedu, Associate Counsel








INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from May 1964 to September 1964, and has unverified service in the Army National Guard.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran requested a hearing before the Board in his December 2011 Substantive Appeal.  However, on January 6, 2012, in a phone call from the VA to schedule his hearing, he withdrew his request for a Board hearing.  As such, the Veteran's request for a hearing is deemed withdrawn.  38 C.F.R. § 20.704 (e) (2013).

The Veteran was represented by Veterans of Foreign Wars of the United States until such representation was withdrawn by a December 2011 statement, prior to certification of the appeal to the Board.  38 C.F.R. §§ 14.631, 20.608(a) (2013).  The Veteran is now pro se before the Board.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 


FINDINGS OF FACT

1.  During the entire appeal, the Veteran's service-connected bilateral hearing loss has been manifested by no more than auditory acuity level IV in the right ear and auditory acuity level II in the left ear.

2.  A 10 percent rating is currently in effect for the Veteran's service-connected tinnitus, the maximum schedular rating assignable for tinnitus whether perceived as unilateral or bilateral in nature.

CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for service-connected bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2013).

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


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants 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.     §§ 3.156(a), 3.159, 3.326(a) (2013).

The Veteran's claims on appeal have arisen from an appeal of the initial evaluations following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional 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).  Therefore, in this instance, no further notice is needed under the VCAA.

The VCAA requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The record reflects that all identified and available post-service medical evidence has been obtained.

In addition, the Veteran was afforded VA examinations in September 2010 and November 2011.  The VA examinations are considered adequate for rating purposes as they are based on consideration of the Veteran's prior medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision.  See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The Board also considered the holding in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), which requires VA audiologists to describe the functional effects of a hearing loss disability in any VA audiological examination report.  The VA examiner, in September 2010, included a recitation of the Veteran's complaints as to what he had difficulty hearing, as described in detail below.  The VA examiner, in November 2011, responded to the examination report's inquiry as to the functional effects of the Veteran's hearing loss and recorded the Veteran's response that there were no such effects.  Regardless of whether these examination reports satisfy the requirement in Martinak, the Veteran must demonstrate prejudice due to any examination deficiency.  Id.  To date, the Veteran has neither advanced an argument that the VA audiological examinations were deficient in any respect, nor that he was prejudiced thereby.

Resolution of the Veteran's appeal of his claim for an initial rating in excess of 10 percent for tinnitus is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus.  The Veteran is already receiving the maximum evaluation available for tinnitus under the applicable rating criteria.  Because no reasonable possibility exists of substantiating this claim, any deficiencies of VCAA notice or assistance are moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001).

In sum, the Board finds that VA has complied with its duty to assist the Veteran.  The Board also finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).



Increased Rating - Bilateral Hearing Loss and Tinnitus 

Disability evaluations are determined by applying the criteria in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013).  Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  
38 C.F.R. § 4.2.  

Separate evaluations may be assigned for separate periods of time based on the facts found.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (2001).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), with an average puretone threshold obtained by dividing these thresholds by four.  38 C.F.R. § 4.85.  Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Once these test results have been obtained, employing Table VI of 38 C.F.R. § 4.85, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average.  Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear.  38 C.F.R. § 4.85.

There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss.  Exceptional hearing loss exists when each of the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more; or where the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86.  The Board notes that the audiological examination results of record show that the provisions of exceptional hearing loss are not applicable in this case.  At no time has the Veteran demonstrated 55 decibels or more of hearing loss at all of the specified frequencies, or 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  

The Veteran's bilateral hearing loss was service-connected by the September 2010 rating decision on appeal and was assigned an initial 10 percent disability rating under Diagnostic Code 6100, contemplating hearing loss.  38 C.F.R. § 4.85.

In November 2009, the Veteran underwent a private audiological examination.  The Veteran stated that his hearing loss makes it difficult for him to hear in most listening situations.  The November 2009 examination also reported on the Veteran's pure tone thresholds.  The Board observes that the Veteran's audiologist only provided the pure tone threshold results in graph form.  However, the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear.  Kelly v. Brown 7, Vet. App. 471 (1995); Savage v. Shinseki, 24 Vet. App. 259 (2011).  

On the examination, the Veteran's pure tone thresholds, in decibels, were as follows:



    Hz 



1000
2000
3000
4000
RIGHT
20
55
80
95
LEFT
30
60
60
70

The average right ear pure tone threshold was 63, and the average left ear pure tone threshold was 55.  Speech recognition was 82 percent in the right ear and 86 percent in the left ear. 

Using Table VI, the Veteran's November 2009 examination results revealed level IV hearing in the right ear and level II in the left ear.  Combining these levels according to Table VII results in a noncompensable rating.  38 C.F.R. § 4.85.

In September 2010, the Veteran was provided a VA audiological examination.  The Veteran reported that he has difficulty hearing over the telephone, difficulty hearing a television, difficulty hearing normal conversations, and a decreased ability to hear or understand.  On the September 2010 examination, the Veteran's pure tone thresholds, in decibels, were as follows:



    Hz 



1000
2000
3000
4000
RIGHT
20
60
80
95
LEFT
25
60
60
65

The average right ear pure tone threshold was 64, and the average left ear pure tone threshold was 53.  Speech recognition was 86 percent in the right ear and 90 percent in the left ear. 

Using Table VI, the Veteran's September 2010 examination results revealed level III hearing in the right ear and level II in the left ear.  Combining these levels according to Table VII results in a noncompensable rating.  38 C.F.R. § 4.85.  

In November 2011, the Veteran underwent another VA audiological examination.  During the exam, he denied any functional impairment as a result of his hearing loss.  On examination, the Veteran's pure tone thresholds, in decibels, were as follows:




    Hz 



1000
2000
3000
4000
RIGHT
35
60
85
85
LEFT
35
60
65
70

The average right ear pure tone threshold was 66, and the average left ear pure tone threshold was 58.  Speech recognition was 92 percent in both the right and left ears.

Using Table VI, the Veteran's November 2011 examination results revealed level II hearing in the right ear and level II hearing in the left ear.  Combining these levels according to Table VII results in a noncompensable rating.  38 C.F.R. § 4.85.  

The above evidence reflects that application of the rating schedule to the numeric designations assigned based on the three audiological examination reports in the claims file indicates that a noncompensable evaluation is appropriate.  For the foregoing reasons, the Board finds that the initial 10 percent rating applied to the Veteran's service-connected bilateral hearing loss is appropriate, and the preponderance of the evidence is against a finding for an initial rating in excess of 10 percent, and the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this case, the Veteran is also seeking an initial rating in excess of 10 percent for his tinnitus.  His tinnitus was service-connected by the September 2010 rating decision on appeal and was assigned an initial 10 percent rating under DC 6260 contemplating tinnitus. 

VA regulations allow a maximum rating of 10 percent for recurrent tinnitus.  Only one evaluation may be assigned, whether the sound is perceived in one ear, both ears, or in the head.  Such rating may be combined with a separate evaluation for hearing loss under DC 6100 and certain other diagnostic codes, unless tinnitus supports an evaluation under those codes.  See 38 C.F.R. § 4.87, DC 6260 & Notes (1)(2).  

As the Veteran is already in receipt of the maximum rating available for tinnitus, an initial rating in excess of 10 percent for such is not warranted.  Thus, the claim for an initial rating in excess of 10 percent for service-connected tinnitus must be denied.  38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49.

Extra-Schedular and Other Considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R.              § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular 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 extraschedular 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). During the appellate period, the Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss and tinnitus.  There is no doubt that the Veteran experiences significant decreased hearing acuity and ringing in the ears; however, such is precisely the symptomatology contemplated by the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's bilateral hearing loss and tinnitus and referral for consideration of extraschedular rating is not warranted.  38 C.F.R. § 3.321; Thun, 572 F.3d 1366. 

The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is 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 this case, the Board finds that a claim for a TDIU is not raised by the record.  Specifically, the Veteran did not discuss any occupational impairment caused by his bilateral hearing loss or tinnitus.  There is no evidence, lay or medical, that the Veteran is unemployable due to his bilateral hearing loss and tinnitus.  Thus, the evidence of record fails to show unemployability on the basis of the Veteran's bilateral hearing loss and tinnitus and the Board finds that no further consideration of a TDIU is warranted. 


ORDER

An initial rating in excess of 10 percent for service-connected bilateral hearing loss is denied.

An initial rating in excess of 10 percent for service-connected tinnitus is denied.



____________________________________________
CHERYL L. MASON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs