Citation Nr: 1527444 Decision Date: 06/26/15 Archive Date: 07/07/15 DOCKET NO. 14-07 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased initial evaluation for tinnitus, to provide for a 10 percent rating evaluation for each ear. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss. ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1963 to February 1967. This matter comes to the Board of Veterans' Appeals (Board) from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Subsequent jurisdiction over this claim has been transferred to Indianapolis, Indiana. FINDINGS OF FACT 1. The Veteran's service-connected (bilateral) tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. 2. The Veteran's bilateral hearing loss is productive of no more than a Level II in the right ear and a Level I in the left ear. CONCLUSION OF LAW 1. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.8, Diagnostic Code 6260 (2014); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Tinnitus The RO granted service connection for tinnitus in a September 2012 rating decision. At that time a 10 percent evaluation was assigned under 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran appeals the initial rating and seeks an increased evaluation for tinnitus. The RO denied the Veteran's request because under Diagnostic Code 6260 a 10 percent evaluation is the maximum schedular evaluation and there is no provision for the assignment of a separate 10 percent evaluation for tinnitus of each year. In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the U.S. Court of Appeals for Veterans Claims (CAVC) held that the pre-1999 and pre-June 13, 2003 versions of DC 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 CAVC 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 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. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the veteran, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). Here, a comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology. Specifically, the schedular rating contemplates ringing in the bilateral ears. The Veteran has also asserted that the ringing in the ears results in difficulty with sleep or being in quiet places and irritates him while driving. In this regard, tinnitus is defined as a "noise in the ears, such as a ringing, buzzing, roaring, or clicking." Dorland's Illustrated Medical Dictionary 1914 (30th ed. 2003); 38 C.F.R. § 19.9 (explaining a remand or referral to the agency of original jurisdiction is not necessary when supplementing the record with a recognized medical treatise). Accordingly, a logical inference from this definition is that a noise in the ears causes difficulty hearing and be irritating in quiet places. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010)("the evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). In other words, the Veteran's complaint is inherent in the definition of the disease. The Veteran has not described any other symptoms or effects from the tinnitus that are not contemplated by the current Diagnostic Code. See Thun, at 111 (2008). The evidence does not reflect that the Veteran's symptoms are so exceptional or unusual as to warrant the assignment of any higher rating. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Hearing Loss Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and an increase in disability rating is at issue, the veteran's present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected bilateral hearing loss has been evaluated as non-compensable as of August 9, 2011, under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85 (2014). In evaluating hearing loss, disability ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. Turning to the record, at the June 2012 VA examination, pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Right 45 45 40 40 Left 50 40 45 50 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 92 percent in the left ear. Entering the average pure tone thresholds of 42.5 in the right ear and 46.25 in the left ear and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is II in the right ear and level I in the left ear. (utilizing table VI). See 38 C.F.R. §§ 4.85, 4.86. Entering the category designations for each ear into Table VII results in a non-compensable evaluation under Diagnostic Code 6100. Id. The Veteran was diagnosed with sensorineural hearing loss bilaterally. The Veteran submitted a June 2012 statement from his private audiologist stating that the Veteran has bilateral hearing loss. This letter does not provide puretone thresholds for each Hz; it just provides an average of 35dB in the right ear and 45db in the left ear. However, this is not helpful for determining the Veteran's evaluation level for VA purposes. Further, the private audiologist does not provide the results of his speech discrimination score. As such, the results provided in this statement are relevant for service connection purposes but are not probative for rating purposes. The Veteran submitted a similar letter from his private audiologist dated October 2012. However, as with the previous letter from June 2012, the statements by the audiologist are relevant for service connection purposes but are not probative for rating purposes because they do not contain puretone thresholds for each Hz, and does not include speech discrimination percentage score. Now turning to the issue at hand, whether the Veteran is entitled to an increased evaluation for his bilateral hearing loss based on his present level of disability. The audiology examination from June 2012 shows that the hearing disability should be evaluated as non-compensable. The Veteran's private audiologist has noted that the Veteran would gain significant benefit from binaural amplification with hearing aids, which appears to be the Veteran's greatest desire from the VA. The Board acknowledges the Veteran's statements that his bilateral hearing loss is worse than the evaluations assigned herein and that he is entitled to a higher evaluation for such hearing loss throughout the appeal period. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims ("Court") held that, relevant to VA audiological examinations, 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 Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this regard, the 2012 VA examiner specifically addressed the functional effects caused by the Veteran's bilateral hearing loss disability by noting that the Veteran's reported situation of greatest difficulty was asking people to repeat themselves when speaking to him. The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. VA's policy requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application. In this Veteran's case, the Board recognizes and has considered the complaints of difficulty understanding speech and trouble hearing. The rating criteria contemplate speech recognition thresholds and ability to hear spoken words on Maryland CNC testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. The Veteran's main complaint is reduced hearing acuity and clarity, which is precisely what is contemplated in the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist With respect to the Veteran's claim for an increased evaluation for tinnitus, the Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 or other law should be undertaken. However, the provisions of the Veterans Claims Assistance Act have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). With respect to the Veteran's claim for a compensable evaluation for his service connected hearing loss, when VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through a notice letter dated May 2012, that fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant 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 claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Veteran was provided a VA examination in June 2012, which was adequate for the purposes of determining the Veteran's current level of disability for service connection and an increased rating for a hearing disability, as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by a January 2014 supplemental statement of the case. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER An evaluation in excess of 10 percent for tinnitus is denied. Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. ____________________________________________ H.SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs