Citation Nr: 18151096 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-39 308 DATE: November 20, 2018 ORDER An initial rating in excess of 10 percent for tinnitus is denied. A compensable initial rating for bilateral hearing loss is denied. Service connection for a right leg disorder is denied. Service connection for a left leg disorder is denied. Service connection for a left foot disorder is denied. Service connection for a right foot disorder is denied. Service connection for a sleep disorder is denied. Service connection for a hypertension is denied. Service connection for tensions headaches is granted. Service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from May 1969 to February 1973. 2. The current rating for tinnitus is the maximum authorized by law. 3. Bilateral hearing loss has been manifested by pure tone thresholds averages of 41.25 decibels in the right ear and 37.5 decibels in the left ear with speech recognition of no worse than 92 percent in each ear. 4. Disorders of the right and left leg and right and left foot, sleep disorder, and hypertension are not shown. 5. Tension headaches are aggravated by service-connected tinnitus. 6. An acquired psychiatric disorder is aggravated by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 C.F.R. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.87, Diagnostic Code (DC) 6260 (2018). 2. The criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, DC 6100, and Tables VI, VII (2016). 3. A right leg disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 4. A left leg disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 5. A right foot disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 6. A left foot disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 7. A sleep disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2018). 8. Hypertension was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). 9. Headaches are the result of service-connected tinnitus. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 10. An acquired psychiatric disorder is the result of service-connected disabilities. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings for Tinnitus and Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Tinnitus The Veteran was granted service connection for tinnitus, and a 10 percent rating was assigned in a November 2014 rating decision. The RO denied his request for a higher rating because the maximum schedular rating authorized for tinnitus is 10 percent. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Veterans Claims Court held that the pre-1999 and pre-June 13, 2003 versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which concluded that the Veterans’ Court erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and DC 6260, which limited a veteran to a single 10 percent rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran’s service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. As there is no legal basis upon which to award a separate schedular evaluation for tinnitus in each ear or a higher schedular rating for tinnitus, the appeal is denied. Bilateral Hearing Loss The Veteran’s bilateral hearing loss is assigned a 0 percent rating, pursuant to 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2018). He contends that a higher rating is warranted. Ratings of hearing loss range from 0 percent 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 Hertz. 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. If impaired hearing is service-connected in only one ear, in order to determine the percentage rating from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of Level I, subject to the provisions of 38 C.F.R. § 3.383, 4.85(f). 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 (2016). 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 (2018). At a November 2014 audiological evaluation, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 55 40 LEFT 15 40 50 45 The average decibel loss in the right ear was 41.25 decibels and in the left ear was 37.5 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. Using Table VI, the audiometric test results show that, at its most severe, the Veteran’s had hearing acuity of Level I in the right ear and Level I in the left ear. 38 C.F.R. § 4.85. Level I hearing acuity in the right ear combined with Level I hearing acuity in the left ear warrants a 0 percent rating. The Veteran has not submitted any medical evidence indicating that his hearing loss disability is more severe than exhibited at the audiological evaluation of record. In November 2015, he underwent a comprehensive audiological evaluation for hearing aids. No pure-tone thresholds were provided in the report but the audiologist diagnosed moderate sensorineural hearing loss and speech recognition was at 92 percent in each ear. Therefore, the level of hearing impairment does not support an increased rating. The Board acknowledges the Veteran’s assertions with respect to this claim. He can attest to factual matters of which he has first-hand knowledge, such as perceived hearing difficulty. Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). However, a determination of whether his perceived hearing difficulty is an actual loss of hearing acuity due to loss of sensorineural functionality requires appropriate medical testing and is not subject to lay evidence. He has not submitted any competent evidence in support of the claim that supports a higher rating. Relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the examiner specifically stated that the Veteran’s hearing loss did not impact ordinary conditions of daily life. Therefore, there is no prejudice to in that the functional effects of his hearing loss disability were adequately addressed by the examiner. Accordingly, the preponderance of the competent and probative evidence weighs against the assignment of a higher rating and the appeal is denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Right and Left Legs, Right and Left Feet, Sleep Apnea, Hypertension Service treatment records are silent for complaint, treatment, or diagnosis associated with disorders of the right and left leg and right and left feet, sleep disorder, and hypertension. The clinical examination performed at separation in November 1972 was normal, including a normal blood pressure reading. Moreover, the post-service medical evidence does not reflect that the Veteran has been currently diagnosed with disorders of the legs, feet foot, a sleep disorder, or hypertension. He has also not provided any statements in support of these claims. Thus, there is no disability for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the appeals are denied. Headaches With regard to headaches, in November 2014, the Veteran reported having headaches associated with his tinnitus. A July 2015 private physician diagnosed tension headaches. The physician opined that the Veteran’s headaches were at least as likely as not permanently aggravated by his service-connected tinnitus. In support of this opinion, the physician noted the subjective complaints at the examination and in the claims file, review of the claims file overall, and findings published in the International Journal of Audiology. In contrast, a May 2017 VA examiner found that the Veteran did not have a headache disorder, noting no complaints of headaches in audiology records from November 2015, and that because tinnitus had been greatly relieved, the headaches were less likely as not due to tinnitus. However, the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, even if the Veteran’s headaches have resolved, a headache disorder that was found to be secondary to service-connected tinnitus was identified during the appeal period. Accordingly, the appeal is granted. Acquired Psychiatric Disorder Similarly, with regard to an acquired psychiatric disorder, a private psychologist examined the Veteran in June 2015 and diagnosed depressive disorder due to another medical condition. In support of the opinion that the depressive disorder was secondary to service-connected disability, the psychologist noted research studies that have found that hearing loss has a significant impact on quality of life and connections between depression and tinnitus. The examiner concluded that the Veteran’s bilateral hearing loss and tinnitus (along with headaches) were more likely than not aggravating a depressive disorder. There is no contradictory evidence of record. As such, the appeal is granted. REASONS FOR REMAND When evidence of unemployability is submitted during the course of an appeal of an assigned rating, a claim for TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the evidence reflects that the private opinions provided in June 2015 and July 2015 indicate that the Veteran is unable to obtain or maintain substantially gainful employment due to service-connected disabilities. Therefore, the question of unemployability has been raised by the record and must be remanded for further development. This matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. 2. Once ratings have been assigned to the service-connected headaches and depressive disorder, obtain an opinion from an appropriate examiner as to the impact of the Veteran’s service-connected disabilities on his employability. Based on a review of the evidence of record, and with consideration of the Veteran’s statements, the examiner is asked to discuss the functional effects that the service-connected disabilities have on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. The examiner must not consider the Veteran’s age or any nonservice-connected disabilities. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. If the Veteran is found capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. A complete rationale must be provided for any opinion rendered. 3. Undertake any other development determined to be warranted. If the evidence reflects that the Veteran is unable to obtain or maintain substantially gainful employment due to service-connected disabilities, but the combined rating does not meet the schedular criteria for a TDIU, the Regional Office should refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extra-schedular consideration of the issue of entitlement to TDIU. 4. Thereafter, adjudicate the issue remaining on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the Veteran and his attorney, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel