Citation Nr: 1751101 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 14-06 938A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral hearing loss. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to May 10, 2017, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the Philippine Guerilla and Combination Service from November 1944 to May 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran testified at a VA Decision Review Officer (DRO) hearing in December 2014. A transcript of the hearing has been associated with the claims file. The case was previously before the Board in July 2016, at which time, the Board remanded the issue of service connection for tinnitus to the Agency of Original Jurisdiction (AOJ) for additional development, including, a VA examination to determine the nature and etiology of the Veteran's claimed tinnitus. The Board also remanded the issue of an initial compensable rating for bilateral hearing loss to the AOJ for additional development, including a VA examination to determine the current severity of the Veteran's service-connected bilateral hearing loss. There has been substantial compliance with the remand directives with respect to the issue decided in this decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2017, the DRO increased the Veteran's rating to 10 percent for bilateral sensorineural hearing loss effective May 10, 2017. Because the increase in evaluation of the Veteran's bilateral sensorineural hearing loss does not represent the maximum evaluation available for the condition, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2016). The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to May 10, 2017, the Veteran had Level I hearing acuity in the right ear and Level II hearing acuity in the left ear. 2. From May 10, 2017, the Veteran had Level IV hearing acuity in the right ear, and Level III hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to May 10, 2017, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. From May 10, 2017, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A. VA has met the requirements of 38 U.S.C.A. §§ 5103 and 5103A. By correspondence dated in April 2012, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim. The letter also notified the Veteran as to how VA assigns disability ratings and effective dates. VA has also satisfied the duty to assist. The claims folder contains service treatment records and VA treatment records. The Veteran underwent VA examinations in April 2012, January 2015, and May 2017. The April 2012 and May 2017 examinations include objective findings necessary for rating purposes and discuss the functional effects due to the Veteran's claim. See 38 C.F.R. § 4.87; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Additional examination is not needed. The Veteran has had the opportunity to provide evidence and argument in support of his appeal, to include testimony at the December 2014 DRO hearing. As noted in the introduction, the claim has been remanded for further development. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns the issue being decided. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied the duty to inform and assist the Veteran, and the Board finds that any errors were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board adjudicating the claim. The Veteran seeks a compensable rating for bilateral hearing loss prior to May 10, 2017, and in excess of 10 percent thereafter. At a December 2014 DRO hearing, the Veteran testified that his hearing loss had worsened. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Service connection for bilateral sensorineural hearing loss with a noncompensable rating was granted in a June 2013 rating decision. A notice of disagreement of the initial rating was received in July 2013. A February 2014 statement of the case (SOC) and a March 2015 supplemental statement of the case (SSOC) continued the noncompensable rating for bilateral sensorineural hearing loss. A rating decision issued in May 2017 increased the disability rating to 10 percent effective May 10, 2017. A supplemental statement of the case issued in June 2017continued the noncompensable rating prior to May 10, 2017, and the 10 percent rating from May 10, 2017. 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 Table 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 audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). The Veteran was afforded a VA examination in April 2012. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 35, 40, 45, and 45 dB, respectively, for an average over the four frequencies of interest of 41.25 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 45, 40, 50, and 55 dB, respectively, for an average over the four frequencies of interest of 47.5 dB. Table VIa must be considered because the April 2012 examiner noted that the speech reception thresholds and word recognition testing were unable to be completed due to the Veteran's language difficulties. The Veteran's primary language was identified as Tagalog. Using Table VIa, a numeric designation of Level I is obtained for the right ear, and a designation of Level II is assigned for the left ear, which results in a noncompensable rating. In a January 2015 VA examination report, an examiner noted that the Veteran's puretone threshold testing could not be performed, because the Veteran could not be conditioned to perform reliably the speech and puretone audiometry behavioral response task bilaterally. The Veteran was afforded a VA examination in May 2017. The results of the puretone threshold testing were in the right ear at 1000, 2000, 3000, and 4000 Hz of 45, 50, 60, and 70 dB, respectively, for an average over the four frequencies of interest of 56.25 dB. The results of the puretone threshold testing were in the left ear at 1000, 2000, 3000, and 4000 Hz of 45, 50, 55, and 70 dB, respectively, for an average over the four frequencies of interest of 55 dB. Table VIa must be considered because the May 2017 examiner noted that the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of puretone average and speech discrimination scores inappropriate. The examiner noted that word discrimination testing was not completed due to the Veteran not being fluent in English. The Veteran's primary language was Tagalog; consequently, he was accompanied by his nephew who served as the interpreter. Using Table VIa, a numeric designation of Level IV is obtained for the right ear, and a designation of Level III is assigned for the left ear, which results in a 10 percent rating. Based on the evidence as outlined above, the Board finds that a compensable rating is not warranted during the period prior to May 10, 2017. The evidence prior to May 2017 shows that the Veteran had audiometric thresholds of Level I for the right ear and II for the left ear, which results in a noncompensable rating. The Board finds that a rating in excess of 10 percent is not warranted during the period from May 10, 2017. The evidence from May 10, 2017 shows that the Veteran had audiometric thresholds of Level IV for the right ear and Level III for the left ear, which results in a 10 percent rating. The Board has also considered the adequacy of the Veteran's examinations, and that an opinion on the effects of hearing loss on daily functioning may be required in a case where the issue of an extraschedular evaluation has been raised. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, the Veteran has not raised the issue of an extraschedular evaluation, nor does the evidence suggest that such an opinion is warranted in this case. The most recent VA examiner in 2017 whose findings resulted in a higher rating for the Veteran's hearing loss also found that the Veteran's hearing loss did not impact the ordinary conditions of daily life including the ability to work. While the Board does not dispute the fact that the Veteran has difficulties with his hearing, the critical question here is the impact of the Veteran's hearing disability on his ability to function in the workforce. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Based on the evidence in this case as outlined and discussed above, there is no basis to find that the regular schedular standards and the assigned disability ratings do not adequately compensate the Veteran for any adverse impact caused by his disability. See Thun v. Peake, 22 Vet. App. 111 (2008). In summary, there is nothing in the record to suggest a referral for an extraschedular rating is warranted, and Martinak does not provide the basis to obtain yet another VA examination in this case. In sum, the Board finds that the criteria for a compensable rating for bilateral hearing loss were not met during the rating period prior to May 10, 2017. The Board finds that the criteria for a rating in excess of 10 percent for bilateral hearing loss were not met during the rating period from May 10, 2017. In reaching these determinations, the Board has considered the benefit of the doubt. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to May 10, 2017, a compensable rating for bilateral hearing loss is denied. From May 10, 2017, a rating in excess of 10 percent for bilateral hearing loss is denied. REMAND Service Connection for Tinnitus The Veteran seeks service connection for tinnitus, which he asserts is related to service or to his service-connected bilateral hearing loss. The Veteran was afforded a VA examination in April 2012, January 2015, and May 2017. In May 2017 the examiner opined that the Veteran's tinnitus condition less likely than not (less than 50 percent probability) was caused by or a result of military noise exposure. The April 2012, January 2015 and May 2017 VA examiners did not opine as to whether the Veteran's tinnitus was related to his service-connected hearing loss. Therefore, the Board finds that a supplemental VA opinion is warranted to determine the nature and etiology of the Veteran's tinnitus. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain a supplemental VA opinion from the May 2017 VA examiner, or other suitable examiner if that examiner is unavailable, to ascertain the etiology of the Veteran's claimed tinnitus. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: a. whether it is at least as likely as not (50 percent or greater likelihood) that tinnitus is proximately due to a service-connected disability to include bilateral hearing loss. b. whether it is at least as likely as not (50 percent or greater likelihood) that tinnitus is aggravated (increased in severity beyond the natural progression of such disorder) by a service-connected disability to include bilateral hearing loss. The examiner should provide a detailed rationale for the opinion. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. 2. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs