Citation Nr: 18155307 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-06 279A DATE: December 4, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a right ear hearing loss condition is remanded. Entitlement to an initial compensable rating for a left ear hearing loss condition is remanded. FINDING OF FACT The Veteran’s service-connected tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260. CONCLUSION OF LAW There is no legal basis for a schedular rating in excess of 10 percent for the Veteran’s tinnitus, and remand for referral for consideration on an extraschedular basis is not warranted. 38 U.S.C. § 1131, 1155 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.321, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1982 to August 1986 as a construction equipment operator and cartographer. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) granting the Veteran’s claim for entitlement to service connection for tinnitus and a left ear hearing loss condition and denying service connection for a right ear hearing loss condition considered not a disability for VA purposes. VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the Veteran nor her representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). Increased Rating Disability evaluations are determined by the application of the facts presented to 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. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran’s tinnitus is currently rated under Diagnostic Code 6260. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. Id. at note 2. This is the maximum schedular evaluation assignable for that condition. The Federal Circuit affirmed VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Therefore, the Veteran’s claim of entitlement to a higher initial disability rating for service-connected tinnitus must be denied as a matter of law. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The Veteran reported during her March 2012 VA examination that the tinnitus impacted ordinary conditions of her daily life, including her ability to work, because it comes and goes daily, in the right ear, like a bellowing sound, very low pitch. Given, however, that the rating criteria for tinnitus contemplate ringing in the ears, the Board finds that the difficulties that the Veteran experiences due to this symptom are contemplated by the rating criteria. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Neither the Veteran nor her representative has identified any symptoms associated with the Veteran’s tinnitus that are not contemplated by the rating criteria. Therefore, referral for consideration of an extraschedular rating for tinnitus is not warranted. 38 C.F.R. § 3.321 (b)(1). In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that “[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities.” Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) (“the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities”). For the foregoing reasons, neither a higher schedular nor an extraschedular rating is warranted for the Veteran’s tinnitus. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a right ear hearing loss 2. Entitlement to a compensable rating for service connection for a left ear hearing loss The Veteran contends that she has a right ear hearing loss that is caused by noise exposure during her active service. As an initial matter, based on the Veteran’s reported occupational specialties in service as a construction equipment operator (training only) and helicopter repair technician, the Board concedes high levels of noise exposure in service. Service treatment records also documented a history of chronic perforations of the left tympanic membrane and underwent a tympanoplasty in September 1984. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The Veteran applied for compensation for bilateral hearing loss in September 2011. The Veteran was afforded a VA bilateral hearing loss examination, conducted by an audiologist, in March 2012. The March 2012 pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 15 20 35 LEFT 70 40 30 40 55 Speech recognition scores based on the Maryland CNC Test were 98 percent in the right ear and 96 percent in the left ear. See VA Examination, March 3, 2012 at p.2 of 7. The Veteran was diagnosed with sensorineural hearing loss in the right ear. However, the hearing loss did not meet the VA criteria for disability. The audiologist opined, “It is the opinion of this examiner that it is at least as likely as not (50/50 probability) that the bilateral hearing loss and tinnitus are caused by or as a result of military noise exposure.” The audiologist stated, “this opinion is based on the fact that threshold shifts (in the high frequency region) were documented in…military audiograms. This type of shift is found in association with acoustic trauma and she would have been exposed to noise levels adequate enough to cause changes to her auditory system while in the service.” In a January 2013 lay statement, the Veteran reported she has “hearing aids in both ears.” The last VA Examination was March 2012. The Board finds that a VA examination for the Veteran’s right ear hearing loss condition is needed to assess the current severity. The Veteran’s left ear hearing loss is currently rated under Diagnostic Code 6100 for hearing loss and is assigned a noncompensable rating. See 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. In a March 2015 lay statement, the Veteran reported that her left eardrum was perforated during a VA audiology pressure test. The last VA Examination was March 2012. The Board finds that a VA examination for the Veteran’s left ear hearing loss condition is needed to assess the current severity. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the current severity of the right and left hearing loss conditions. Testing should include the use of controlled speech discrimination (Maryland CNC) testing and puretone audiometry testing. The electronic claims file should be provided to the examiner for review in conjunction with the examination. If further testing or examination by specialists is required to evaluate the claimed disability, such testing or examination is to be done before completion of the examination report. The examiner should specifically comment on the effects of the Veteran’s hearing loss on occupational functioning and daily activities. 2. Thereafter, readjudicate the Veteran’s claim. If a complete grant of benefits is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and her representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel