Citation Nr: 0724926 Decision Date: 08/10/07 Archive Date: 08/20/07 DOCKET NO. 07-13 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss, prior to February 16, 2007. 2. Entitlement to a rating in excess of 20 percent for bilateral hearing loss, from February 16, 2007. 3. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from June 1952 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which granted service connection for bilateral hearing loss and assigned a 10 percent rating effective January 20, 2006, and also denied service connection for bilateral tinnitus. The veteran perfected his appeal as to the issue of the evaluation of the bilateral hearing loss. In April 2007, the RO increased the veteran's disability rating for bilateral hearing loss to 20 percent effective February 16, 2007. The United States Court of Appeals for Veterans Claims ("the Court") held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet .App. 35, 38 (1993). Consequently, the matter of the evaluation remains in appellate status. In January 2007, correspondence was received from the veteran in which he described having ringing in his ears all of the time. The Board accepts this statement as a notice of disagreement as to the denial of service connection for bilateral tinnitus. That issue is therefore addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The March 2006 examination results constitute Level II hearing on the right and Level VI hearing on the left; the February 2007 examination results constitute Level V hearing on the right and Level V hearing on the left; and the March 2007 examination results constitute Level V hearing on the right and Level VI hearing on the left. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to February 16, 2007, for bilateral hearing loss, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2006). 2. The criteria for a rating in excess of 20 percent from February 16, 2007, for bilateral hearing loss, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2006); 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in January 2006 was sent to the claimant which addressed service connection for bilateral hearing loss which satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If there is VCAA deficiency, i.e., VCAA error, this error is presumed prejudicial to the claimant. VA may rebut this presumption by establishing that the error was not prejudicial. See Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). The RO awarded service connection for bilateral hearing loss in an April 2006 rating decision and assigned a 10 percent rating effective January 2006 (date of claim). Thereafter, a 20 percent rating was assigned February 2007. Therefore, the VCAA letter served its purposes in that it provided section 5103(a) notice of the claimant; and its application is no longer required because the original claim has been "substantiated." The Board further notes, however, that in February 2007, additional VCAA notification was provided which addressed the matter of the evaluation of bilateral hearing loss. The claimant's post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded VA examinations in March 2006 and in March 2007. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. There is no objective evidence indicating that there has been a material change in the service-connected bilateral hearing loss since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are adequate upon which to base a decision. The veteran was also sent a letter regarding the appropriate disability rating or effective date to be assigned in March 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Evaluation Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo- Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Copies of the pertinent tables were provided to the veteran in the statement of the case. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). The veteran maintains that he has difficulty hearing as well as understanding speech. He cannot understand conversations with his friends or grandchildren. He does not enjoy going to church or any other place as he does not understand what other people are saying. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins were a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The veteran is competent to report having decreased hearing and that he does not understand speech or conversations. He is also credible in those statements. However, he is not competent to provide an opinion regarding his exact audiological findings at various Hertz levels or of his speech recognition scores as these matters require medical expertise which he does not possess. In January 2006, the veteran's claim for service connection for bilateral hearing loss was received. In conjunction with that claim, the veteran was afforded a VA examination in March 2006. On the audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 55 60 65 LEFT 40 60 60 75 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 64 percent in the left ear. The puretone threshold average in the right ear was 51.25. The puretone threshold average in the left ear was 58.75. The examiner stated that the veteran had normal hearing in the low frequencies of the right ear with a moderate to severe loss in the mid and high frequencies. The veteran had a mild loss in the low frequencies with a moderate to severe loss in the mid to high frequencies. VA outpatient records reflected that the veteran had a history of deafness noted in April 2006 and January 2007. On February 9, 2007, the veteran had his ear canals irrigated. On February 16, 2007, the veteran was afforded an audiological evaluation. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 55 55 65 LEFT 40 60 60 75 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 72 percent in the left ear. The puretone threshold average in the right ear was 48.75. The puretone threshold average in the left ear was 58.75. The examiner stated that the veteran had normal hearing in the low frequencies of the right ear with a moderate to severe loss in the mid and high frequencies. The veteran had a mild loss in the low frequencies with a moderate to severe loss in the mid to high frequencies. In March 2007, the veteran was afforded another VA examination. On the audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 65 65 80 LEFT 50 65 65 85 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 72 percent in the left ear. The puretone threshold average in the right ear was 61.25. The puretone threshold average in the left ear was 66.25. The examiner stated that the veteran had mild to profound sensorineural hearing loss from 250-80000 Hertz, bilaterally. Under the rating criteria, the March 2006 examination results constitute Level II hearing on the right and Level VI hearing on the left. When combined, the result is a 10 percent disability evaluation. Under the rating criteria, the February 2007 examination results constitute Level V hearing on the right and Level V hearing on the left. When combined, the result is a 20 percent disability evaluation. Under the rating criteria, the March 2007 examination results constitute Level V hearing on the right and Level VI hearing on the left. When combined, the result is a 20 percent disability evaluation. The RO has assigned a 10 percent rating from the effective date of service connection, January 20, 2006, until February 16, 2007, the date of the second audiological evaluation. At that time, audiological findings indicated that a 20 percent rating was warranted under the rating criteria. The criteria for a rating in excess of 20 percent were not met, based on the audiological findings. The Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more. The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, on any of the examinations. The Board acknowledges the veteran's contentions regarding his difficulty hearing, however, the audiology examinations yielded results which did not warrant higher ratings. This objective evidence is more persuasive with regard to the level of disability under the rating schedule as it specifically pertains to those rating criteria. The Board is bound in its decision by application of the rating schedule to the reported test results. The preponderance of the evidence is against the claim for a higher evaluation for the veteran's hearing loss disability. Thus, the benefits sought on appeal must be denied. ORDER An initial rating in excess of 10 percent for bilateral hearing loss, prior to February 16, 2007, is denied. A rating in excess of 20 percent for bilateral hearing loss, from February 16, 2007, is denied. REMAND As noted in the introductory portion of this decision, the veteran has submitted a notice of disagreement as to the issue of entitlement to service connection for bilateral tinnitus. As such, a statement of the case must be issued. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). Accordingly, this matter is REMANDED for the following actions: The veteran should be sent a statement of the case as to the issue of entitlement to service connection for bilateral tinnitus in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the veteran perfects his appeal by submitting a timely and adequate substantive appeal on this issue, then the claim should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 (West Supp. 2006). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs