Citation Nr: 1754737	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-24 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Entitlement to an increased rating for service-connected bilateral hearing loss, to include an initial, compensable rating prior to November 6, 2013, and an initial rating in excess of 30 percent thereafter.

2. Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran had active duty service in the U.S. Navy from October 1944 to April 1946.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted service connection for bilateral hearing loss and bilateral tinnitus and assigned initial noncompensable (zero percent) and 10 percent ratings to each disability, respectively.

In a December 2013 rating decision, the RO increased the Veteran's disability rating for his bilateral hearing loss to 30 percent effective November 6, 2013.

The Veteran was notified of the increased ratings but he did not withdraw his appeal. Accordingly, the increased rating claims continue and the Board will evaluate whether higher ratings are warranted prior to and after the date of increase for each disability. See AB v. Brown, 6 Vet. App. 35 (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) (2012).


FINDINGS OF FACT

1. For the appeal period prior to November 6, 2013, the Veteran's bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear.

2. For the appeal period as of November 6, 2013, the Veteran's bilateral hearing loss has been manifested by no worse than Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear.

3. The Veteran's tinnitus has been assigned a 10 percent evaluation, the maximum evaluation authorized under Diagnostic Code 6260, and his disability does not present an exceptional disability picture so as to warrant referral of this claim for extra-schedular consideration.


CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating prior to November 6, 2013, and in excess of 30 percent thereafter for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).

2. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.87, Diagnostic Code 6260 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VCAA

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).  

The Board acknowledges the Veteran's representative's November 2017 request for examinations addressing the Veteran's claims. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes, however, that although the Veteran's last VA examination was in November 2013, he has not asserted that his service connected disabilities have increased in severity. The Board therefore finds that a new examination is not necessary, as the record reflects the current level of severity for his service connected disabilities.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Increased Ratings

Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). 

The 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 (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.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. 

A. Hearing Loss

Service connection was established for bilateral hearing loss, and was evaluated as noncompensable prior to November 6, 2013, and as 30 percent disabling thereafter, pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The Veteran maintains that such disability is more severe than as reflected by the currently assigned ratings.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a 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).  

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85.  An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86.

Applying the criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating for bilateral hearing loss have not been met for any time prior to November 6, 2013. Overall, the credible lay and medical evidence establishes that the Veteran's service-connected bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear. Additionally, for the time period since November 6, 2013, the credible lay and medical evidence establishes that the Veteran's service-connected bilateral hearing loss was manifested by no worse than Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear.

The Veteran underwent a VA audiological examination in March 2010. The Veteran reported that he had difficulty hearing in church, restaurants, and on the phone. His wife had to repeat conversations. The Veteran's pure tone thresholds for the right ear were 40, 60, 70, and 75 decibels at 1000, 2000, 3000, and 4000 Hertz; the average was 65 decibels. Pure tone thresholds for the left ear were 50, 65, 70, and 75 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively, with an average of 61.25 decibels. Speech discrimination scores, using the Maryland CNC word list, were 96 percent for the right ear and 80 percent for the left ear. The examiner diagnosed bilateral sensorineural hearing loss.

The audiometric testing results obtained during the March 2010 examination do not represent an exceptional pattern of hearing impairment, and equate to Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear utilizing Table VI.  Applying the percentage ratings for hearing impairment found in Table VII, Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear results in a noncompensable disability rating. See 38 C.F.R. § 4.85.  

The Veteran has stated that the noises in his ear get louder as the years pass and affect his ability to hear. See October 2010 Notice of Disagreement, November 2010 Statement from the Veteran, and September 2012 Substantive Appeal.

The Veteran underwent another VA audiological examination in November 2013. The Veteran reported frequent need for repetition in conversations and difficulty understanding speech on the television and phone. The Veteran's pure tone thresholds for the right ear were 55, 75, 75, and 85 decibels at 1000, 2000, 3000, and 4000 Hertz; the average was 73 decibels. Pure tone thresholds for the left ear were 70, 80, 90, and 90 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively, with an average of 83 decibels. Speech discrimination scores, using the Maryland CNC word list, were 84 percent for the right ear and 68 for the left ear. The examiner diagnosed bilateral sensorineural hearing loss.

These results are demonstrative of exceptional patterns of hearing impairment in both ears, as thresholds are at 55 dB or more for each frequency from 1000 to 4000 Hz.  For the right ear, Table VIA is more favorable to the Veteran, and shows Level VI impairment.  For the left ear, both Table VI and VIA show Level VII impairment. Applying the percentage ratings for hearing impairment found in Table VII, Level VI hearing acuity in the right ear and Level VII hearing acuity in the left ear results in a 30 percent disability rating. See 38 C.F.R. § 4.86.

To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing and understanding speech, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Despite the foregoing, the Board acknowledges the Veteran's reports of difficulty hearing and understanding speech. Even after considering such contentions, the Board finds that the criteria are not met for a compensable rating prior to November 6, 2013, or a rating in excess of 30 percent thereafter. See Lendenmann, supra (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).

The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that additional staged ratings for such disability are not warranted.

B. Tinnitus

The Veteran seeks an increased rating for his service-connected tinnitus, currently rated 10 percent disabling under Diagnostic Code 6260. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's representative contends that the Veteran's current symptomatology warrants a higher evaluation than the schedule for rating disabilities allow. Under Diagnostic Code 6260, a single 10 percent disability rating is warranted for tinnitus, regardless of whether it is unilateral or bilateral, or whether it is constant versus recurrent. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Accordingly, the Veteran's appeal for an initial increased rating in excess of 10 percent for his tinnitus must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

In a November 2017 Informal Hearing Presentation, the Veteran's representative indicated that the Veteran's current symptomatology associated with his tinnitus warrants a higher evaluation than the schedule for rating the disability allows. In that regard, the Board has also considered whether extraschedular consideration is warranted.  While the Board cannot assign an extraschedular rating for a disability in the first instance, it can specifically adjudicate whether to refer a case to the VA Director of Compensation Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). 

In determining whether referral for consideration of an extra-schedular rating is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the rating criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun, 22 Vet. App. at 115. If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for an extra-schedular evaluation. 

The Board has compared the level of severity and symptomatology of the Veteran's service-connected tinnitus with the established criteria found in the rating schedule. The Veteran and his representative have not reported any symptomatology that is not contemplated by the rating schedule. During the March 2010 and November 2013 VA audiological examinations, the Veteran's tinnitus was described as constant, in which he heard clicking and roaring. The Veteran had tinnitus of the left and right ear. In addition, he stated it was frequently annoying and sometimes prevented him from sleeping. Given the relevant evidence considered, the Board finds that the Veteran's tinnitus symptomatology is fully addressed by the rating criteria under which the disability is rated, as such criteria contemplates that tinnitus is perceived in both ears and is recurrent.  Therefore, the rating criteria contemplate the functional impairment that resulted from the Veteran's tinnitus, and referral for extraschedular consideration is not warranted because there is not an exceptional and unusual disability picture. See Thun, 22 Vet. App. at 115-16; see also Doucette v. Shulkin, 28 Vet. App. 366 (2017). Furthermore, it has neither been alleged nor shown that the Veteran's tinnitus has caused marked interference with employment or resulted in frequent hospitalizations.


ORDER

An increased rating for service-connected bilateral hearing loss, to include an initial compensable rating prior to November 6, 2013, and a rating in excess of 30 percent thereafter is denied.

A rating in excess of 10 percent for service-connected tinnitus is denied.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs