TINNITUS

C. BOSELY · 2019 · Case ID: 19144602

MIXED

Summary

The veteran, who served from July 1961 to July 1969, appeals the denial of an increased rating for tinnitus, an extraschedular rating for tinnitus, and earlier effective dates for left ear hearing loss and tinnitus. The Board denied the increased and extraschedular ratings for tinnitus, finding the veteran was already assigned the maximum schedular rating of 10 percent. The Board also denied earlier effective dates for left ear hearing loss and tinnitus, noting that while the veteran received treatment for hearing loss prior to the claim's effective date, there was no evidence of an intent to seek service connection at that earlier time. The Board remanded claims for right ear hearing loss and an initial compensable rating for left ear hearing loss. The remand was necessary because the VA examiner's opinion on the right ear hearing loss did not adequately account for changes in audiometric testing standards between the enlistment and separation examinations, and no etiology opinion was provided for the right ear hearing loss. The examiner also did not address the potential impact of these standard changes on the left ear hearing loss.

Rationale

Veteran already assigned maximum schedular rating; Symptoms contemplated by rating schedule (DC 6260); No exceptional disability picture for extraschedular consideration

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6260

Docket No.

18-39 192

Full Decision Text

Citation Nr: 19144602
Decision Date: 06/10/19 Archive Date: 06/10/19

DOCKET NO. 18-39 192
DATE: June 10, 2019

ORDER

An initial rating in excess of 10 percent for tinnitus is denied.

An extraschedular rating for tinnitus is denied.

An effective date prior to November 23, 2015, for the award of service connection for left ear hearing loss is denied.

An effective date prior to November 23, 2015, for the award of service connection for tinnitus is denied.

REMANDED

Service connection for right ear hearing loss is remanded.

An initial compensable rating for left ear hearing loss is remanded.

FINDINGS OF FACT

1. The Veteran’s initial 10 percent rating for tinnitus is the highest schedular rating available.

2. The Veteran’s tinnitus does not present such an exceptional disability picture that renders the rating schedule inadequate.

3. The Veteran’s claims for hearing loss and tinnitus were received November 23, 2015 with no prior pending or unadjudicated claims.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260.

2. The criteria for an extraschedular rating for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.87, DC 6260.

3. The criteria for an effective date prior to November 23, 2015, for the award of service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

4. The criteria for an effective date prior to November 23, 2015, for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1961 to July 1969.

The case is on appeal from a February 2016 rating decision.

Following the June 2018 statement of the case (SOC), the Veteran submitted additional lay evidence. Waiver of Regional Office (RO) consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e).

Although the Board is remanding two claims for additional development, remand is not necessary for the other issues, as there is no reasonable possibility that further assistance would substantiate these claims. See 38 C.F.R. § 3.159(d).

Increased Ratings

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

1. An initial rating in excess of 10 percent for tinnitus.

2. An extraschedular rating for tinnitus.

As issues 1-2 are related, the Board will address them together.

The February 2016 rating decision granted service connection for the Veteran’s tinnitus and assigned an initial 10 percent rating for the entire rating period. This was based primarily on the February 2016 VA examination report which indicated the Veteran has recurrent tinnitus which is a symptom associated with his service-connected hearing loss.

The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87
. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

1. An initial rating in excess of 10 percent for tinnitus.

2. An extraschedular rating for tinnitus.

As issues 1-2 are related, the Board will address them together.

The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, DC 6260. The applicable rating schedule directs that recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head will be assigned a single 10 percent evaluation. 38 C.F.R. § 4.87.

The Veteran is currently assigned the maximum schedular rating for tinnitus for the entire appeal period. Thus, a higher schedular rating in excess of 10 percent is not permissible. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

In a May 2019 brief, the Veteran’s representative raised the issue of whether an extraschedular rating is warranted.

The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires the Board to determine whether the “evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Id. This requires the Board to compare a veteran’s specific symptoms and their severity with those contemplated by the rating schedule. King v. Shulkin, 29 Vet. App. 174, 178-79 (2017). If the Board determines that a veteran’s symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to “determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service for a determination about whether an extraschedular rating is warranted. Id; See also 38 C.F.R. § 3.321(b).

Here, the Veteran indicated during the May 2018 VA examination that his tinnitus is bothersome when he is trying to fall asleep. The Board finds that the first Thun element is not satisfied for the claimed disability, as the symptoms and their severity described by the Veteran are contemplated by the rating criteria. Noise, such as ringing and buzzing, are the symptoms of tinnitus. This is a matter of common knowledge or within the experience of ordinary persons. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). This is confirmed by Dorland's Illustrated Medical Dictionary at 1914 (30th ed. 2003) (tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking). Thus, the Veteran’s symptoms are contemplated by DC 6260.

The Veteran has not identified any unique or unusual symptoms of his tinnitus, and the representative provided a non-specific contention as to this aspect of the claim. Thus, these symptoms are contemplated by the rating schedule and referral for extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b). See King v. Shulkin, 29 Vet. App. 174, 180 (2017); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017).

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher schedular rating or an extraschedular rating, that doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial rating in excess of 10 percent for tinnitus, whether on an schedular or extraschedular basis,
29 Vet. App. 174, 180 (2017); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017).

Effective Date

3. An effective date prior to November 23, 2015, for the award of service connection for left ear hearing loss.

4. An effective date prior to November 23, 2015, for the award of service connection for tinnitus.

Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). Furthermore, the date of receipt of claim to reopen, or date entitlement arose, whichever is later, is the proper effective date for a claim to reopen. See 38 C.F.R. § 3.400(r).

The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155.

In this case, the Veteran contends that the effective date of service connection for his service-connected left ear hearing loss and tinnitus should be prior to November 23, 2015.

The Veteran submitted a November 2015 claim for service connection for bilateral hearing loss and tinnitus. The February 2016 rating decision granted service connection for left ear hearing loss and assigned a noncompensable rating and also, granted service connection for tinnitus and assigned a 10 percent rating. Both ratings were effective November 23, 2015. The Veteran submitted a May 2016 NOD which indicated his hearing problems started around 2013. There are no other contentions as to why an effective date prior to November 23, 2015 is appropriate.

The Board determines an earlier effective date prior to November 23, 2015, for the Veteran’s left ear hearing loss and tinnitus is not warranted.

The record shows the Veteran’s claims of service connection for hearing loss and tinnitus were received November 23, 2015, which is the assigned effective date. There are no indications of any earlier claims for hearing loss and tinnitus, including any informal claims under prior 38 C.F.R. § 3.155 (2014). There were an earlier set of claims shortly after the Veteran’s separation from service, but they pertained to unrelated medical conditions. Even upon a liberal reading, these medical conditions did not relate in any way to hearing loss.

The Veteran asserted his hearing loss and treatment began prior to November 2015. Consistent with his statements, a July 2013 VA treatment record indicated the Veteran reported progressive hearing loss and requested an audiological evaluation. Even though hearing loss treatment was shown in medical records at an earlier time, the mere presence of medical evidence does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) (“[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised”).

Likewise, the law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the later of
records at an earlier time, the mere presence of medical evidence does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) (“[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised”).

Likewise, the law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the later of these two dates in this case is the date the Veteran filed his claim, the earlier evidence showing the presence of a hearing loss does not allow for assignment of an earlier effective date.

Therefore, while the record supports that the Veteran had earlier medical treatment for his hearing loss disability, prior to November 23, 2015, the Board finds an earlier effective date is not warranted for the award of service connection for left ear hearing loss and tinnitus. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Thus, the preponderance of the evidence is against the claims for an effective date prior to November 23, 2015, for the grant of service connection for left ear hearing loss and tinnitus; the benefit of the doubt doctrine is not applicable; and an earlier effective date is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. An initial compensable rating for left ear hearing loss is remanded

2. Service connection for right ear hearing loss.

As issues 1-2 are interrelated, the Board will address them together.

The Veteran contends his right ear hearing loss is related to his in-service exposure to hazardous noise. The Veteran’s military occupational specialty (MOS) was as a fuel specialist, an MOS with a “moderate” probability of exposure to hazardous noise. As noted above, the Veteran is currently service connected for left ear hearing loss.

In the May 2016 NOD, the Veteran indicated he had his hearing aids adjusted several times as his hearing continues to worsen. He stated his hearing loss problems will not get better but will deteriorate. In the August 2018 substantive appeal, he also stated his hearing is worsening. Further, in the May 2019 appellate brief, the Veteran’s representative indicated the Veteran has credibly asserted that his hearing loss is the result of his in-service acoustic trauma, as the nature of his military assignment exposed him to hazardous noise.

Regarding the left hearing loss, the Veteran’s statements indicate that there may have been an increase in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the left hearing loss disability.

Regarding the right hearing loss, a February 2016 VA audiological examiner found a current right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. The examiner indicated the Veteran’s right ear hearing loss is not related to service. She reported his enlistment and separation examinations revealed normal pure tone thresholds with no shift in hearing found. She indicated medical research supports that based on the current knowledge of cochlear physiology, there is no sufficient scientific basis for the existence of delayed-onset hearing loss. She noted the Institute of Medicine (IOM) did not rule out that delayed onset hearing loss might exist. However, the examiner summarized, because the requisite longitudinal animal and human studies have not been performed and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss.

The Board notes a May 2018 VA audiological examination was afforded to the Veteran; however, no etiology opinion was provided with regard to the right ear hearing loss claim.

The Board finds that the February 2016 VA opinion is not yet adequate. The examiner materially relied on a conclusion that there was no shift in hearing between the time of an August 1961 audiogram and a June 1969 separation examination. (The Board observes that the VA examiner incorrectly classified the August 1961 test as the enlistment examination, but the Veteran entered service in July 1961. The July 1961 enlistment examination only included results of a whispered voice test.)

The examiner did not appear to account for the change in audiometric testing standards that occurred between these two time periods from the American Standards Association (ASA) units to the International Standards Organization-American National Standards Institute (ISO-ANSI) units. The August 1961 audiogram did not define what test was use, although this appears to have prior to the implementation of the ISO-ANSI standards on November 1, 1967. The June 1969 audiogram specifically states that it used the ISO standard. To this extent, the VA examiner did not indicate whether this change had any impact on the determination regarding whether there was a threshold shift.

Thus, a new medical opinion is needed to address the nature and etiology of the Veteran’s right ear hearing loss.

The matter is REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to address the left and right hearing loss.

The examiner is asked to address each of the following:

(a.) Provide all findings regarding the current severity of his left ear hearing loss disability.

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(b.) Address whether a right ear hearing loss at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In doing so, the examiner should account for the difference in the standards used (ASA and ISO-ANSI) during the Veteran’s service and his MOS as a fuel specialist.

COREY BOSELY

Acting Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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