Citation Nr: 1639470 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 11-05 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss disability. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Waco, Texas, Regional Office (RO) of the Department of Veteran Affairs (VA). In July 2014 the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for further development. The requested development as to the claims adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Throughout the entire appeal period, audiometric examinations correspond to at worst Level II hearing loss in his right ear and Level IV hearing loss in his left ear. 2. Throughout the entire appeal period, the Veteran in receipt of the maximum schedular rating for tinnitus. CONCLUSIONS OF LAW 1. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is not warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86 Diagnostic Code 6100 (2015). 2. Entitlement to an initial rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his bilateral hearing loss disability and tinnitus. As such, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman, 19 Vet. App. 473, aff'd, Hartman, 483 F.3d 1311. VA also has a duty to assist a Veteran in the development of a claim. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, private treatment records, relevant VA medical records, VA medical examinations, and the Veteran's own contentions. The September 2014 examination was conducted in accordance with the Board's July 2014 remand request. Initial Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in 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. In the case of an initial rating, the entire evidentiary record from the time of a Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Rating Schedule, 38 C.F.R. § 4.85, Diagnostic Code 6100, sets out the criteria for evaluating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Scores are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz ), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). 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, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Analysis After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 0 percent for bilateral hearing loss disability and a rating in excess of 10 percent for tinnitus. The evidence of record does not more nearly approximate the criteria for a compensable evaluation for hearing loss disability and the Veteran is receiving the maximum rating for tinnitus. The Board first turns to the Veteran's claim for an initial rating in excess of 0 percent for bilateral hearing loss. The Veteran's wife submitted a statement in November 2009 regarding the Veteran's hearing loss and tinnitus symptoms. She knew the Veteran to be hard of hearing for ten years. The Veteran explained to her that he had ringing in his ears and headaches started at the same time. During conservational speech, the Veteran had to ask her and others to repeat themselves and tell them he could not hear. He turned his phone on as high as it would go "just to hear." When ringing was really bad, he was nauseated and could not understand what was being said. The Veteran was afforded a VA audiological examination in February 2010. The Veteran reported significant, constant tinnitus that he felt was annoying and disruptive. Significant effects on occupational activities were reported by the Veteran as memory trouble, decreased concentration, difficulty following instructions, inappropriate behavior, poor social interactions and hearing difficulty. His reported effect on daily activities was difficulty understanding daily conversation, especially in competing environments. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 5 20 65 65 38.75 LEFT 10 20 60 70 40 Maryland CNC word recognition testing was 84 percent for the right ear and 88 percent for the left ear. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran has a numeric designation of Level II for his right ear and Level II for his left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Veteran submitted statements in support of his claim regarding symptoms related to hearing loss and tinnitus. See October 2010 notice of disagreement and January 2011 VA Form 9. The Veteran reported ongoing difficulty hearing conversational speech. He struggled talking on the telephone or with background noise. His deficits were challenging and stressful, especially in his work environment. Tinnitus was disturbing, uncomfortable and painful; at times, it was so intense that he wished he could pull his ears out to make it stop. It interfered with any and all of his daily activities and caused sleep trouble. The conditions of hearing loss and tinnitus caused stress and depression. The Veteran was afforded a VA audiological examination in June 2012. The Veteran's hearing loss and tinnitus was not indicated to impact ordinary conditions of daily life, including his ability to work. The Veteran reported that, at times, his tinnitus bothered him extremely and sometimes the condition interfered with sleep. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 45 70 70 52 LEFT 25 35 70 70 50 Maryland CNC word recognition testing was 88 percent for the right ear and 84 percent for the left ear. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran has a numeric designation of Level II for his right ear and Level II for his left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Veteran submitted a statement received in January 3, 2012 where he reported symptoms of stress and difficulty at work due to hearing loss and tinnitus. He had difficulty communicating at work as a manager with both employees and patrons. Specifically, he had to interrupt others and ask them to repeat themselves for a full understanding. He felt others were looking at him like he was "deaf or something." His biggest problem was ringing in his ears which varied in intensity. Hearing aids did help at times but were uncomfortable and caused itching (which he was provided cream for but it did not help). When ringing in his ears was intense, hearing aids made no difference. At times, he was so stressed during the day that at the end of the day he suffered headaches. Of note, the Veteran was granted service connection for depressive disorder, not otherwise specified due to his service-connected tinnitus, evaluated as 30 percent disabling in a September 2012 RO rating decision. In an April 2012 VA psychiatric examination, tinnitus was indicated to impact the Veteran's functional ability at work and socialization. In light of an asserted worsening of his hearing loss and tinnitus conditions from the Veteran, a July 2014 Board remand requested an updated VA examination. Clarification was sought as to whether symptoms of headaches, nausea, ear pain, sleeplessness, memory loss, decreased concentration, inappropriate behavior, poor social interaction and difficulty following instructions were related to the Veteran's hearing loss and tinnitus conditions. The Veteran was afforded a VA audiological examination in September 2014. The Veteran reported that his hearing loss made it difficult to communicate with others in a variety of environments. At work, he stayed and talked with his supervisor after a meeting to review what was discussed and he asked coworkers to repeat themselves as needed. At home, he had difficulties understanding his spouse and the television. Socially, he had difficulties communicating with background noise. The Veteran reported tinnitus made it difficult to obtain a good night's sleep. He felt frustrated when it became pronounced and could sometimes interfere with conversation or when focusing on a task. He stated that when tinnitus became significantly pronounced it could cause pain in his ears. The VA examiner clarified that complaints of headaches, nausea, ear pain, sleeplessness, memory loss, decreased concentration, inappropriate behavior, poor social interaction and difficulties understanding instruction were unrelated to his service-connected hearing loss; likewise, all symptoms except ear pain were unrelated to his tinnitus. He detailed that there had been some patients in his facility who noted occasional ear pain through the facility with the onset of tinnitus, though there was no specific peer medical review on the subject of tinnitus in relation to ear pain. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 45 70 75 55 LEFT 30 35 70 75 53 Maryland CNC word recognition testing was 84 percent for the right ear and 80 percent for the left ear. After applying the above audiological findings to Table VI in 38 C.F.R. § 4.85, the Veteran has a numeric designation of Level II for his right ear and Level IV for his left ear. Such a degree of hearing loss warrants a noncompensable evaluation under Table VII. The Board has considered the Veteran and his wife's assertions that the Veteran's hearing is worse than evaluated based on his functional loss. The lay statements are both competent and credible in regard to reporting worsening hearing acuity and functional effects. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. As a layperson, the Veteran and his wife are competent to report difficulties with his hearing; however, they are not competent to assign particular speech recognition scores or puretone decibel readings to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85. The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. The Board now turns to the Veteran's claim for an initial rating in excess of 10 percent for tinnitus. The Board notes that the Veteran has been assigned a 10 percent initial rating for tinnitus. This is the maximum rating available under Diagnostic Code 6260. See 38 C.F.R. § 4.87 (2015); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding 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). As such, the Veteran is not entitled to an increased schedular rating under Diagnostic Code 6260. The Board finds that this is the most appropriate Diagnostic Code for rating the Veteran's tinnitus. Extraschedular Considerations The Board has also considered whether this hearing loss disability or tinnitus should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, hearing loss disability and tinnitus do not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Board finds that the schedular criteria are adequate to rate the Veteran's hearing loss disability. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, as noted here, and as measured by both audiology testing and speech recognition testing. The Veteran's complaints concern diminished auditory acuity and speech recognition, to include having trouble understanding daily speech as noted in the February 2010, June 2012 and September 2014 VA examination reports. It is noted that diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria. Moreover, the testing is to be performed without the use of hearing aids. 38 C.F.R. § 4.85(a). The scores represent a rating made on the worst possible objective measure of performance. In short, the Veteran does not have any symptoms or impairment from the service-connected hearing loss disability that is unusual or are different from those contemplated by the schedular rating criteria. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, the Board finds that the schedular evaluation is adequate for the evaluation of hearing loss disability, and no referral is required. See 38 C.F.R. § 4.130, Diagnostic Code 6100 (2015). For the Veteran's tinnitus, the criteria is adequate to the extent the Veteran has reported constant ringing in his ears, as the rating criteria accounts for multiple variations of recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. However, to the extent the Veteran has asserted ear pain associated with tinnitus, the symptomatology has not been contemplated by the rating criteria. Accordingly, the Board must address the second element of Thun, as detailed below. In making the above findings, the Board observes the Veteran's psychiatric complaints such as depression and stress due to symptoms of hearing loss and tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that laypersons are competent to report symptoms they observe through their senses). However, as noted, the Veteran is currently service-connected for an acquired psychiatric condition (depressive disorder not otherwise specified) as secondary to tinnitus. These psychiatric symptoms are a separate and distinct manifestation of the Veteran's tinnitus, such that the Veteran is entitled to a separate evaluation for these manifestations. See Estaban v. Brown, 6 Vet. App. 259 (1994) (holding that in cases where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps). For additional symptoms reported as related to hearing loss and/or tinnitus such as headaches, nausea, sleeplessness, memory loss, decreased concentration, inappropriate behavior, poor social interaction and difficulties understanding instruction, the most recent September 2014 VA examiner specifically clarified that they were unrelated to his service-connected hearing loss and/or tinnitus. The Board finds the VA examination report more probative than the Veteran's statements. In doing so, the Board notes the examiner is a medical professional and was able to review the overall record, including the Veteran's history and opinions. Although the Veteran is competent to report symptoms, he is not competent to establish an etiological link as it is beyond the realm of a lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4 (Fed. Cir. 2007). With respect to the second Thun element as it applies to tinnitus, the evidence does not suggest that any of the "related factors" are present which result in an exceptional or unusual disability picture. The Veteran does not contend, and the evidence of record does not suggest, that his tinnitus has caused marked absence from work or has resulted in any hospitalizations. In this regard, the medical evidence of record is absent any hearing loss related hospitalizations. Further, there is no indication that the Veteran's symptoms have resulted in functional impairment that would approximate a marked absence. Here, the Veteran has reported extra time spent after meetings and requesting coworkers or patrons to repeat themselves but he has not described any details of his condition that would indicate difficulties in fulfilling occupational duties in any significant way. In making this finding, the Board acknowledges the February 2010 VA examiner's notation of "significant effects" on the Veteran's occupational activities due to both bilateral hearing loss and tinnitus. However, the Board interprets these findings as an overstatement of the condition as reported by the Veteran. As explained above, all of the symptoms other than difficulty hearing which resulted in "significant effects" reported were found to be actually unrelated to both hearing loss and tinnitus by the September 2014 VA examiner. Undoubtedly, tinnitus has some impact on the Veteran's employment due to difficulty with communication; however, there is no showing of an exceptional or unusual disability due to tinnitus. Therefore, even if the rating criteria were deemed inadequate for ear pain related to tinnitus, referral is not warranted as the case does not present an exception or unusual disability picture. ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs