Citation Nr: 1648398 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 15-12 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Marine Corps from December 1963 to December 1967, including honorable service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue of entitlement to total disability rating due to individual unemployability (TDIU) has been raised by the record by the Veteran in a September 2014 Application for Increased Compensation Based on Unemployability, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. Audiological testing of the Veteran's hearing acuity when applied to Table VII does not result in a disability rating in excess of 30 percent. 2. The Veteran began experiencing symptoms of tinnitus while in service, and he has continued to experience them since separation from service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.383, 3.385, 4.85-4.87, Diagnostic Code 6100 (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified before the Board on February 26, 2016. The Veteran was also provided a VA examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disabilities and contentions, grounded her opinion in the medical literature and evidence of record, and provided the information necessary to rate the service-connected disability on appeal.. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, at the hearing the Veteran testified that he had not experienced a worsening of his hearing, but that it was his tinnitus that interfered with his hearing. As such, a new examination was not requested as the Veteran bilateral hearing loss has not increased in severity since the VA examination. Moreover, neither the Veteran nor his representative has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In January 2014, the Veteran was granted service connection for hearing loss and assigned a 30 percent rating effective November 20, 2012, which is the date of his service connection claim. The Veteran originally asserted that he was entitled to a higher rating, but at the hearing, he testified that he was satisfied with the 30 percent rating. Nevertheless, the Board will adjudicate the issue of an increased rating for his bilateral hearing loss. The Veteran's hearing loss has been rated under Diagnostic Code 6100, for hearing loss. See 38 C.F.R. §§ 4.85, 4.86. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The Veteran was afforded a VA examination for his hearing loss in January 2014. The results of audiometric testing showed a pure tone threshold average of 69 dB with a speech discrimination score (Maryland CNC) of 100 percent in the left ear, and a pure tone threshold average of 69 dB with a Maryland CNC of 100 percent in the right ear. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Here, the Veteran's average decibel loss and speech recognition score at the January 2014 audiological examination equate, using Table VI, to a Level II in the left ear and to a Level II in the right ear. When these results are combined on Table VII, the results from the January 2014 audiological examination result in a noncompensable rating. However, Table VIA is applicable in this case because the pure tone threshold was 70 decibels or more at 2000 Hz for both ears. 38 C.F.R. § 4.86. The Veteran's average decibel loss at the January 2014 audiological examination equate, using Table VIA, to a Level V in the left ear and to a Level V in the right ear. These numerals will be elevated to the next higher Roman numeral, which is a Level VI in each ear. Id. When these results are combined on Table VII, the results from the January 2014 audiological examination result in a 30 percent rating. VA treatment records have been reviewed, but do not show the results of any additional audiometric testing during the course of the appeal. As described, a schedular rating in excess of 30 percent is not warranted for the Veteran's bilateral hearing loss. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that he is entitled to a higher rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the disabilities on appeal has been provided by the medical personnel who has examined him during the current appeal and has rendered a pertinent opinion in conjunction with the evaluation. The medical finding (as provided in the examination report) directly addresses the criteria under which these disabilities are evaluated. Accordingly, a rating in excess of 30 percent for the Veteran's bilateral hearing loss is denied. 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Service Connection In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds no reason to doubt the Veteran's credibility. Given this conclusion, the Board will review his statements as to the etiology of his tinnitus. In January 2014, the Veteran was afforded a VA examination for his tinnitus. He reported his tinnitus was bothersome. The examiner diagnosed the Veteran with tinnitus. In his March 2015 substantive appeal, the Veteran reported that his tinnitus developed during his active service and he continued to experience tinnitus. At the February 2016 hearing, the Veteran testified that his tinnitus began during basic training and that he continues to experience tinnitus. The Veteran has credibly reported that he began experiencing tinnitus while in service and that it continues to the present day. The Veteran has been diagnosed with tinnitus. As such, the criteria for service connection for tinnitus have been met and the Veteran's claim is granted. ORDER A rating in excess of 30 percent for bilateral hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs