Citation Nr: 1605314 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 12-07 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to service connection for headaches, to include as secondary to the service-connected tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to November 1974. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2008, the Veteran filed a claim for headaches as secondary to his service-connected tinnitus. However, multiple theories of entitlement constitute the same claim if they pertain to the same benefit for the same disability. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). Thus the issue on appeal is characterized as a claim of service connection for headaches, to include as secondary to the service-connected tinnitus. Since the Veteran was last issued a Supplemental Statement of the Case (SSOC) in May 2015, additional records have been added to the claims folder to include examination reports and records from the Social Security Administration (SSA). Although a new SSOC has not been issued following receipt of these records, the records are cumulative or not pertinent to the Veteran's claim of a compensable rating for bilateral hearing loss, and thus a waiver of initial RO consideration is not needed. See 38 C.F.R. § 20.1304 A total disability rating based on individual unemployability (TDIU) may be considered part of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) (in which the United States Court of Appeals for Veterans Claims (Court) explained that "[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability"). Here, the Veteran filed a TDIU claim in November 2015 and claimed that he was unable to work due to his service-connected radiculopathy and depressive disorder. While a TDIU claim pursuant to Rice is not currently before the Board (as the issue on appeal is a claim for a compensable rating for bilateral hearing loss), a TDIU claim has been raised by the record, and this matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. In the February 2012 Statement of the Case, the claim for service connection for a major depressive disorder as secondary to the service-connected bilateral hearing loss was listed. In the Form 9 Appeal received in March 2012, the Veteran indicated that he was appealing all issues listed in the Statement of the Case. That same month his representative reiterated that the Veteran was appealing all issues listed in the Statement of the Case. Then, in a May 2015 rating decision, the RO granted service connection for an unspecified depressive disorder and assigned an evaluation of 30 percent effective October 16, 2008, which was a full grant of the benefit sought. As the Veteran has not expressed disagreement with the initial rating assigned nor the effective date, this claim is not in appellate status. The issue of entitlement to service connection for headaches, to include as secondary to the service-connected tinnitus, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period, the audiometric findings show that the Veteran has had no worse than level I hearing acuity in his right ear, and no worse than level V hearing acuity in his left ear, with no exceptional pattern of hearing loss in either ear. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.85 including Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in May 2008 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2009. Nothing more was required. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available treatment records to include service treatment records, post-service medical records, SSA records, and lay statements. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran was also provided with VA audiological examinations in June 2008 and December 2014. Although the Veteran in his February 2010 notice of disagreement contended that his June 2008 audiological examination was conducted by a physician's assistant and not a certified audiologist as required by 38 C.F.R. § 4.85, the examination report indeed shows that the examination was done by a certified audiologist. The Board has reviewed the audiograms based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing during the current appeal period. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. In Martinak v. Nicholson, 21 Vet. App. 447, 455(2007), the Court held that, relevant to VA audiological examinations, and in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the evaluation. Functional effects were addressed during the VA examinations and the Veteran's lay statements regarding the functional effects resulting from his bilateral hearing loss are being fully considered. While the December 2014 VA examiner did not review the claims file, such omission is harmless as the focus of the examination was on the current level of severity. Thus, the Board finds that the totality of the evidence of record is adequate upon which to base a decision with regard to the Veteran's claim and that there is no additional evidence which needs to be obtained as to this matter. Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2007). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Tables VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). 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 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). Further, as discussed earlier, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results a VA audiologist must 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 a veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Analysis The Veteran filed a claim of entitlement to a compensable rating for bilateral hearing loss in April 2008. On VA audiological examination in June 2008, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 35, 35, 30, and 20, for an average of 30 , and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows 50, 55, 50, and 45, for an average of 50. The speech recognition score, using the Maryland CNC Test, was 96 percent in the right ear and 76 percent in the left ear. Evaluating these VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores for the right ear from the VA examination in June 2008 are applied to Table VI, the numeric designation of hearing impairment is level I. When the puretone threshold averages and speech recognition scores for the left ear from the VA examination in in June 2008 are applied to Table VI, the numeric designation of impairment is level IV. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. See 38 C.F.R. § 4.85, DC 6100. Further, the June 2008 VA examiner noted that the Veteran reported difficulty hearing in crowds and had to raise the television volume to hear. See Martinak v. Nicholson, supra. On VA audiological examination in December 2014, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 25, 35, 20, for an average of 25, and puretone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 60, 50, 55, and 55 for an average of 55. The speech recognition score, using the Maryland CNC Test, was 100 percent in the right ear and 74 percent in the left ear. Evaluating these VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores for the right ear from the VA examination in December 2014 are applied to Table VI, the numeric designation of hearing impairment is level I. When the puretone threshold averages and speech recognition scores for the left ear from the VA examination in in December 2014 are applied to Table VI, the numeric designation of impairment is level V. When these numeric designations for the right and left ears are applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. See 38 C.F.R. § 4.85, DC 6100. Further, the December 2014 VA examiner discussed the functional effects caused by the Veteran's hearing disability and stated that the Veteran's hearing loss impacted ordinary conditions of his daily life, including the ability to work. The examiner further related that the Veteran reported that his hearing loss causes him to be unable to understand instructions as he misses what was said. He also indicated that he doesn't realize when the television is too loud. See Martinak v. Nicholson, supra. Throughout the entire appeal period the provisions of 38 C.F.R. § 4.86 which address exceptional patterns of hearing loss are not applicable. There is no showing that the Veteran had an exceptional pattern of hearing loss during this period. Consideration is given to the functional effects of the Veteran's hearing, which as discussed above caused him difficulties hearing the television and people speak, particularly in crowds. Although the Veteran's statements regarding his symptoms are competent and credible, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered. Lendenmann v. Principi, supra. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. Such mechanical application does not warrant a compensable rating at any time during the appeal period. Accordingly, the evidence preponderates against the claim for a compensable rating for bilateral hearing loss. The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Finally, as discussed in the Introduction, the claim for an increased rating for a service-connected disability includes a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not contended that he has been unemployed due to his service-connected bilateral hearing loss. The issue of TDIU is not before the Board. Extraschedular Consideration On VA audiological examination in December 2014, the examiner indicated that the Veteran's hearing loss impacted ordinary conditions of his daily life including the ability to work. However, the Board notes that the Veteran's disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, as explained above, the Board concludes that the rating criteria for the Veteran's service-connected bilateral hearing loss reasonably describe his disability level and symptomatology and do provide for a greater evaluation for more severe symptoms. His difficulty hearing and understanding people is precisely the type of symptomatology and functional impairment contemplated by the rating criteria for hearing loss. The rating criteria contemplate puretone thresholds in decibels, speech reception thresholds and ability to hear spoken words on Maryland CNC testing. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Thus, referral for the assignment of an extraschedular disability rating is not warranted. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). (CONTINUED ON NEXT PAGE) ORDER A compensable rating for the service-connected bilateral hearing loss is denied. REMAND On VA examination in August 2008, the examiner opined that the Veteran's current headaches, which were short-lasting and stabbing, were different from the headaches documented in his service treatment records, noted to be sinus headaches, headaches associated with otitis and upper respiratory infections, and headaches of uncertain causes. In August 2009, another VA examiner opined that the Veteran's headaches were not related to his service-connected tinnitus. On VA examination in June 2010 for ear disease, the examiner opined that, as the Veteran's 2008 MRI shows minimal sinus disease, it was unlikely the Veteran's headaches were due to sinusitis and service. However, the August 2008 VA examination and June 2010 VA examination for ear disease appear to be inconsistent with the June 2010 VA examination for the nose, sinus, larynx, and pharynx as the examiner opined that the Veteran had sinus pressure headaches related to the inflammation from the allergic rhinitis. VA treatment records in August 2015 also show that the Veteran had a history of unspecified migraines. Thus, the Veteran should be afforded another VA examination to determine whether his headaches are related to in-service headaches with multiple etiologies. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the August 2009 VA examiner in rendering the opinion that the headaches were not related to the service-connected tinnitus did not provide a rationale nor did the examiner address whether the headaches were aggravated by tinnitus. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that a VA examiner's opinion that the claimed disability was "related to" factors other than a veteran's service-connected disability was insufficient, as it did not clearly encompass a discussion of aggravation). On remand, the VA examiner must address whether the current headaches are caused by the service-connected tinnitus and whether they are aggravated by the service-connected tinnitus. Further, prior to obtaining any clarifying opinion, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, arrange for the Veteran to undergo a VA examination, by an appropriate examiner to determine the etiology of the current headaches. After reviewing the claims folder and examining the Veteran the examiner must: a.) Identify/diagnose all current headache disabilities. b.) For each identified headache disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service. The examiner is asked to discuss service treatment records, to include entries in October 1972 that show the Veteran had headaches with a diagnosis of sinusitis, in June 1973 that show he had parietal headaches with a diagnosis of cephalgia, in July 1974 that show he was in the optometry clinic complaining of headaches every three months, and on the October 1974 report of medical history upon separation from service that shows the Veteran had occasional headaches lasting 1 to 4 days for 4 years with an undetermined etiology. c.) For each identified headache disability, the examiner should address whether it is at least as likely as not (50 percent probability or more) that it was caused or aggravated by the service-connected tinnitus. [If the Veteran is found to have a headache disability that is aggravated by his service-connected tinnitus, the examiner should quantify the approximate degree of aggravation.] The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why. 3. Lastly, readjudicate the claim for service connection for a headache disorder, to include as secondary to the service-connected tinnitus. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2015). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs