Citation Nr: 18152605 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-12 699 DATE: November 23, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to an effective date prior to July 31, 2013, for the grant of service connection for tinnitus is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating authorized under the applicable criteria; factors warranting an extraschedular rating are not shown. 2. The Veteran’s hearing loss is at worst II in the right ear and IV in the left ear. 3. There is no communication of record prior to July 31, 2013, the date of the Veteran’s claim to reopen service connection for tinnitus, which can be construed as a formal or informal claim for VA compensation benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.87, Diagnostic Code 6260. 2. The criteria for a compensable rating for bilateral hearing loss have not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for an effective date earlier than July 31, 2013 for the grant of service connection for tinnitus have not been satisfied. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. He is the recipient of a Purple Heart and Combat Action Ribbon among other medals and awards. This appeal comes before the Boards of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The Board notes that the Veteran’s former representative formally filed a motion to the Board to withdraw from representation in September 2018, after certification of the case to the Board, and that motion has been granted. 38 C.F.R. § 20.608(b)(2). Increased Ratings 1. Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran asserts that his service connected tinnitus is more severe than the currently assigned 10 percent rating. The criteria of Diagnostic Code (DC) 6260 were revised, effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, regardless of whether tinnitus is found as being in one ear or in each ear or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s interpretation of Diagnostic Code 6260 in Smith v. Nicholson, 451 F.3d 1344, 1350-51 (Fed. Cir. 2006). Based on the clear language of DC 6260 and the Federal Circuit’s ruling in Smith, the Board concludes that the 10 percent schedular rating for the Veteran’s tinnitus is the maximum rating assignable under Diagnostic Code 6260. The Board has considered whether the case should be referred for consideration of a higher initial rating on an extraschedular basis, as this would be the only basis for an increase. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). Per Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. In this regard, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the Schedule for that disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Schedule, the assigned schedular rating is therefore adequate, and no referral is required. In this case, the evidence does not show an exceptional or unusual disability picture with such related factors as marked interference with employment (and certainly not hospitalization). The Veteran has not reported any interference with employment as a result of his tinnitus or that he has ever been hospitalized for tinnitus. Moreover, the Veteran has not reported why the rating schedule does not adequately compensate him for his tinnitus. Consequently, the Board concludes that referral of this matter for consideration of an extraschedular rating is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Moreover, as the Veteran is currently in receipt of a 100 percent rating, and as he has not contended, nor does the evidence show, that this particular disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 2. Entitlement to a compensable rating for bilateral hearing loss The Veteran asserts that his service connected hearing disability is more severe than the currently assigned noncompensable rating. Service connection was granted effective January 21, 2004. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall apply, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Hearing loss ranges from zero to 100 percent. This is based on organic impairment of hearing acuity measured by combining controlled speech discrimination tests results together with the average hearing- threshold level measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness to evaluate the degree of disability from service-connected hearing loss. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The ratings for disability compensation for hearing loss are determined by a mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the audiometry test and the results of the speech discrimination test. The vertical lines in Table VI 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. See id. The numeric designation of impaired hearing for each ear (Levels I through XI) is determined by intersecting the vertical row, the percentage of discrimination, and the horizontal column, the pure tone decibel loss. The rating is determined in Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column, the numeric designation for the ear having the better hearing acuity (as determined by Table VI), and the horizontal row, the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). The provisions of 38 C.F.R. § 4.86, addresses exceptional patterns of hearing impairment and allows for use of Table VIA, which evaluates hearing impairment based only on pure tone averages, if the veterans pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, or the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. On the contract hearing evaluation in April 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 25 60 60 LEFT 40 45 45 55 60 The average pure tone threshold was 46.25 decibels in the right ear and 51.25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 76 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, the results correspond to a hearing level of II in the right ear and IV in the left ear. Applying these hearing levels to 38 C.F.R. § 4.85, Table VII, the Board finds that a compensable rating is not warranted. The Board notes that there are no other relevant medical records after November 2014 to consider whether a compensable disability rating is warranted. The Board also finds that there are no exceptional patterns of hearing impairment. The Board finds the results of the November 2014 VA audiological examination adequately represent the severity of the Veteran’s hearing loss throughout the pendency of this claim. As such, the preponderance of the evidence is against an entitlement to a compensable rating for bilateral hearing loss; therefore, the Veteran’s appeal is denied. The Board acknowledges the Veteran’s assertions that his hearing is worse than currently rated. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge, and the Board finds that the Veteran is credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). That noted, the Board finds that the assigned noncompensable rating fully contemplates the functional effects contemplated by the Veteran and are consistent with his testing findings and the hearing loss those findings reflect. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Earlier Effective Date 3. Entitlement to an effective date prior to July 31, 2013 for the grant of service connection for tinnitus The Veteran claims entitlement to an effective date for the grant of service connection for tinnitus prior to July 31, 2013. Generally, the effective date of an evaluation and award of pension is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board’s analysis will necessarily include a determination of the date of the claim and the date when entitlement arose. A claim, for VA compensation purposes, is broadly defined to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). The date of entitlement is the date the claimant meets the basic eligibility criteria including evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, the Veteran filed a claim in January 2004 on VA Form 21-526 for entitlement to service connection for tinnitus. A review of the Veteran’s relevant medical records revealed no diagnosis of tinnitus at that time. The claim was denied in an October 2004 rating decision; the Veteran did not file an appeal and the denial became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.302. A claim previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q). The effective date of an award of service connection is based on the date the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). “The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” Sears v. Principi, 16 Vet. App. 244, 248 (2002). Claims can be reopened and reviewed if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In October 2010, the Veteran submitted VA Form 21-4138, Statement in Support of Claim, asserting he suffers tinnitus. In a November 2010 VA Audio examination, the examiner did not explicitly provide a diagnosis of tinnitus. Although reopened, the claim was denied in a September 2011 rating decision because the Veteran still lacked a diagnosis of tinnitus. The Veteran did not file an appeal; the denial became final. On July 31, 2013, the Veteran notified VA by letter that he would like his claim for tinnitus reopened. During an April 2014 VA hearing examination, the examiner opined that the Veteran’s tinnitus was “at least as likely as not … caused by or a result of military noise.” With this diagnosis, the Veteran established entitlement for service connection for tinnitus. The Board finds that the proper date of service connection for tinnitus is July 31, 2013. As noted above, the Veteran's prior claims seeking service connection for tinnitus were denied in final, unappealed rating decisions in 2004 and 2011. There are no submissions dated after the final September 2011 rating decision and the July 31, 2013 claim seeking service connection for tinnitus. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication, “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). Since the date of the reopened claim giving rise to service connection is July 31, 2013, the Veteran is not entitled to an earlier effective date and the appeal is denied. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, the record indicates that the disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidentiary requirement that the record indicates that the claimed disability may be associated with active service is a “low threshold.” McLendon, 20 Vet. App. at 83. 4. Entitlement to service connection for migraine headaches is remanded Service treatment records (STRs) reflect complaints of headaches associated with respiratory infections. The Veteran should be afforded a VA examination to determine if his migraine headaches are related to active service. 5. Entitlement to service connection for a cervical spine disorder is remanded A review of STRs reveal that the Veteran was injured when a bridge he was walking across collapsed but there is no indication he was treated at that time or during the remainder of his active service for cervical spine injuries. VA medical records submitted in April 2004 reveal that the Veteran was involved in an accident in October 2003 resulting in complaints of neck pain. Treatment records reveal conflicting etiology for the cervical strain. There has been no VA examination to determine the nature and cause of this disability and the Veteran should be afforded a VA examination to help determine if it is service related. Accordingly, the matters of migraine headaches and a cervical spine disorder are REMANDED for the following action: 1. With the help of the Veteran, determine if there are any outstanding treatment records, and obtain them. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s migraine headaches. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current migraine headaches manifested during, are otherwise causally or etiologically related to, or aggravated by, a period of active duty service. The examiner should consider and discuss the Veteran’s medical history and claims file. The examiner should also provide a complete rationale for all opinions expressed and conclusions reached. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any diagnosed Veteran’s cervical spine disorder. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current cervical spine disorder manifested during, is otherwise causally or etiologically related to, or aggravated by, a period of active duty service. The examiner should consider and discuss the Veteran’s medical history and claims file. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Banks, Associate Counsel