Citation Nr: 1338897 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-27 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss prior to September 15, 2010. 2. Entitlement to an initial evaluation for service-connected bilateral hearing loss in excess of 20 percent from September 15, 2010. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted the Veterans claim for service connection for bilateral hearing loss and assigned an initial noncompensable evaluation and denied the Veteran's claim for service connection for tinnitus. In March 2011, the RO increased the rating for the Veteran's service-connected bilateral hearing loss to 20 percent, effective September 15, 2010. As that grant did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). A review of the Veteran's electronic claims files in Virtual VA and VBMS is significant for an appellate brief dated November 2013. Otherwise, they contain no additional information or evidence pertinent to the claims on appeal. The issues of entitlement to an initial evaluation for service-connected bilateral hearing loss in excess of 20 percent from September 15, 2010, and service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to September 15, 2010, the ratable evidence shows no worse than Level II hearing impairment in the right ear and Level I hearing impairment in the left ear. CONCLUSION OF LAW Prior to September 15, 2010, the criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, in a pre-rating letter dated in March 2009, the Veteran was provided notice of the information and evidence needed to substantiate a claim for service connection for hearing loss. This notification would also apply to the "downstream" issue of entitlement to a higher initial rating. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the VCAA notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA has also fulfilled its duty to assist in obtaining other identified and available evidence needed to substantiate the Veteran's claim. VA and private audiological treatment records and examination reports and lay statements of the Veteran in support of the claim have been associated with the record. A VA examination to assess the nature of the Veteran's hearing loss was performed in June 2009. The Board finds that this examination, along with the other evidence of record, is fully adequate for the purpose of determining the extent of the Veteran's hearing loss disability in light of the applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is also aware of the United States Court of Appeals for Veterans Claims (Court) decision in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) which held that 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. The June 2009 VA examination report documents the Veteran's complaints of difficulty hearing the TV and phone, his spouse, and in the presence of background noise. The examiner noted that functional effects of the Veteran's hearing loss on his occupational and daily activities included arguments with his wife when she thinks he is not listening. There is no indication in the record that functional effects of the Veteran's hearing loss amount to effects beyond the criteria for hearing loss considered under the regular schedular standards so as to warrant a referral for an extraschedular rating under 38 C.F.R. § 3.321. To the extent that there is any failure on the part of the VA examiner to fully discuss functional effects caused by the Veteran's hearing loss, the Board finds that it would amount to harmless error. For the period dating prior to September 15, 2010, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria and Analysis The current appeal stems from a rating decision which granted service connection for bilateral hearing loss and assigned an initial noncompensable (zero percent) disability rating effective October 1, 2008. The Veteran essentially contends that his bilateral hearing loss disability presents a greater degree of impairment than is reflected by initial noncompensable evaluation currently assigned for the period prior to September 15, 2010. In his August 2009 notice of disagreement, the Veteran claimed that his bilateral hearing loss disability warrants a higher evaluation as it had been described by treatment providers as "severe." Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, 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. To evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the claimed disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In cases such as this where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. In cases where the disability rating for hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (performed via the Maryland CNC Test) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). In rating disabilities due to hearing impairment, VA must first determine the Roman numerical designation for hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85, Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. For example, if audiometric testing shows an average pure tone threshold of 60 in the right ear and Maryland CNC testing shows the percentage of discrimination of 70 in the right ear, the numeric designation level is "V" for one ear. The same procedure would be followed for the left ear. 38 C.F.R. § 4.85(b). Alternatively, in instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85, Table VIa. An exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or, (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. § 4.86. In such exceptional cases, Table VIa provides for a Roman numerical designation that simply corresponds to the calculated pure tone threshold average for each ear. In this case, as demonstrated below, prior to September 15, 2010, the ratable evidence does not show that the Veteran has had an exceptional pattern of hearing loss at any time. Accordingly, the Roman numerical designations for the Veteran's hearing loss will be determined exclusively by application of Table VI. After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85, Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). For example, if the poorer ear has a Roman numerical designation of "VII" while the better ear has a numeric designation level of "V," the assigned disability rating is 30 percent. 38 C.F.R. § 4.85(e). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designation assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In determining the appropriate rating for the Veteran's hearing impairment, however, VA must also consider whether an extra- schedular evaluation under 38 C.F.R. § 3.321(b) should be assigned in the case where the disability affects on the Veteran's occupational function and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 454-55. In this case, evidence dating from October 2007 to September 15, 2010, includes a March 2008 VA audiology consultation and a June 2009 VA audiological examination. Unfortunately, for reasons explained below, findings on audiometric testing performed on during the March 2008 VA audiology consultation are inadequate for rating purposes. Following VA audiology consultation in March 2008, the Veteran was diagnosed with normal to severe sensorineural hearing loss bilaterally. Numerical findings on puretone examination during this audiology consultation are not of record. The Board finds, however, that it is unnecessary to remand the claim for obtainment of numerical findings on puretone examination during the March 2008 audiology consultation because audiological findings obtained for treatment purposes is not tested via the Maryland CNC Test as mandated under VA regulations. 38 C.F.R. § 4.85. Accordingly, audiometric findings on VA audiology consultation in March 2008 cannot be used for determining the extent of the Veteran's hearing loss. On VA audiological examination in June 2009, puretone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz, in decibels, were as follows: 30, 55, 60, and 65 in the right ear; and 25, 65, 65, and 70 in the left ear. Puretone threshold averages were 53 decibels in the right ear and 56 decibels in the left ear. Speech audiometry on Maryland CNC speech recognition test showed a speech recognition ability of 84 percent in the right ear and 94 percent in the left ear. The examiner diagnosed a normal to moderately severe sensorineural hearing loss in the right ear and a normal to severe sensorineural hearing loss in the left ear. Application of the results from the June 2009 VA examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level II hearing loss in the right ear and level I hearing loss in the left ear. Where hearing loss is at Level II in the worse right ear and level I in the better left ear, a noncompensable (zero percent) evaluation is assigned under Table VII. 38 C.F.R. § 4.85 (2013). As puretone thresholds at each of the four specified frequencies were not 55 decibels or more in either ear, an exceptional pattern of hearing impairment was not shown. Thus, findings on this examination do not warrant consideration under 38 C.F.R. § 4.86. On review, for the period dating prior to September 15, 2010, the ratable audiometric findings on VA examination in June 2009 are reflective of findings consistent with the assignment of a noncompensable evaluation for the Veteran's bilateral hearing loss disability. Findings on that examination do not show that a higher compensable evaluation is warranted for the Veteran's bilateral hearing loss disability during this period. In light of the foregoing, there is no ratable evidence that the Veteran's hearing loss meets the criteria for an initial compensable rating prior to September 15, 2010. Although the Veteran has indicated that his hearing is worse than the criteria associated with a noncompensable evaluation, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. Lendenmann, 3 Vet. App. at 345. The current noncompensable evaluation is reflected by the rating evidence of record and there is no indication that the findings on the June 2009 VA audiological examination are inadequate. Thus, the Veteran's claim for an initial compensable evaluation prior to September 15, 2010, cannot be granted. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). With respect to the first prong of Thun, the evidence in this case dated prior to September 15, 2010, does not show such an exceptional disability picture that the available schedular evaluation for the disability at issue is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria shows that the rating criteria reasonably describe the disability levels and symptomatology attributable to the Veteran's service-connected hearing loss. In reaching this conclusion, the Board considered that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In this regard, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86, which were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The Board acknowledges that the Court has held that a request for a total disability rating due to individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has not alleged that his hearing loss prevents him from obtaining or maintaining substantially gainful employment. Thus, the Board finds that this matter is not raised by the record and it is therefore unnecessary to remand the matter for further action. ORDER Entitlement to an initial compensable evaluation for service-connected bilateral hearing loss prior to September 15, 2010, is denied. REMAND The most recent VA audiological examination evaluating the severity of the Veteran's service-connected bilateral hearing loss disability is dated in September 2010, more than three years ago. In the November 2013 appellate brief, the Veteran's representative suggests that the Veteran's hearing loss disability has worsened since the September 2010 examination. To ensure that the record reflects the current severity of the Veteran's bilateral hearing loss disability on appeal, a more contemporaneous examination is warranted, with findings responsive to all applicable rating criteria. As to the Veteran's claim for service connection for tinnitus, a review of the record, shows that there are three conflicting and/or inadequate etiological opinions as to whether the claimed disability is related to the Veteran's military service or service-connected bilateral hearing loss disability. A May 2009 statement from Dr. DTL indicates that the Veteran's "hearing loss and tinnitus are related to noise trauma secondary [to] military noise exposure." No supporting rationale was provided for that conclusion and there was no explanation as to the absence of any mention tinnitus in Dr. DTL's October 2007 clinical audiological treatment notes. On VA audiological examination in June 2009, the Veteran reported recurrent bilateral ringing tinnitus that occurred once a month and lasted for a few seconds for approximately one year. Due to the Veteran's reported onset of tinnitus within the past year, the examiner was unable to give an opinion on military acoustic trauma in relation to the Veteran's tinnitus without resort to mere speculation. On VA audiological examination in September 2010, the examiner stated that tinnitus was not a complaint at the time of examination, thus, the Veteran's claimed tinnitus disability is not related to his military acoustic trauma. Given the need to remand the Veteran's claim for increase for a bilateral hearing loss disability from September 15, 2010, for a new VA audiology examination and the above conflicting and inadequate etiological opinions pertaining to the etiology of Veteran's claimed tinnitus disability, it is necessary to remand the claim for obtainment of an additional etiological opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant ongoing VA audiological treatment records, to include numerical findings on any audiometric evaluations, from VA Hudson Valley Health Care System dating since February 2011. All records requests and responses received must be associated with the claims file. 2. Once all relevant records have been obtained and associated with the claims file to the extent possible, schedule the Veteran for a VA audiology examination with an audiologist to determine the current level of severity of the Veteran's hearing impairment and for an etiological opinion pertaining to his claimed tinnitus disability. The claims folder and any treatment records contained in Virtual VA must be made available to and reviewed by the examiner. The examiner should elicit from the Veteran all complaints associated with his service-connected bilateral haring loss disability, to include any associated functional impairment. Audiometric testing and speech discrimination testing should be performed, including the Maryland CNC test. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's bilateral hearing loss. If test results are considered invalid or an inaccurate depiction of the severity of the Veteran's hearing loss, such a conclusion should be explained in detail why valid and reliable audiometric data could not be obtained. Base on a review of the claims folder, findings and opinions from current and prior clinical examinations and the Veteran's contentions, the examiner should provide an opinion as to the following: a) Is it at least as likely as not (i.e., at least a 50 percent or better probability) that Veteran's tinnitus is etiologically related to an event, injury, or disease in service, to include as a result of acoustic trauma related to military noise exposure? b) Is it at least as likely as not (i.e., at least a 50 percent or better probability) that Veteran's tinnitus is proximately due to or aggravated by (permanently worsened beyond normal progression) by his service-connected bilateral hearing loss disability? If the examiner finds that tinnitus is aggravated by service-connected bilateral hearing loss, then he/she should quantify the degree of aggravation. A thorough rationale must be provided for all opinions expressed. If the examiner is unable to provide any requested opinion, a supporting rationale must be provided concerning why the opinion cannot be given. If any test results are valid, this should be noted and thoroughly explained in the examination report. 3. Following completion of the above, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters 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. 2013). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs