Citation Nr: 0007042 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 96-45 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased (compensable) evaluation for a high frequency hearing loss, left ear, with tinnitus. 2. Whether new and material evidence has been received sufficient to reopen the veteran's claim for entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1970. This matter initially came before the Board of Veterans' Appeals (Board) from a November 1995 rating decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a compensable rating for high frequency hearing loss, left ear, with tinnitus. The veteran has also initiated an appeal from a July 1999 rating decision which denied a claim to reopen a claim for service connection for right ear hearing loss. This claim was previously before the Board in November 1997, when it was remanded for additional development of the evidence. That decision noted that the veteran's informal claim for the reopening of a right ear hearing loss should be developed, as well as the veteran's claim that a compensable rating should be assigned for his tinnitus disability. The issues of whether new and material evidence has been received sufficient to reopen the veteran's claim for entitlement to service connection for a right ear hearing loss disability, as well as the issue of an increased evaluation for a left ear hearing loss disability, are addressed in the Remand portion of the opinion. For reasons discussed more fully below, the issue of a separate, compensable evaluation for a tinnitus disability is bifurcated from the issue of an increased evaluation for a left ear hearing loss disability. FINDINGS OF FACT 1. All evidence necessary for the equitable disposition of the veteran's claim for an increased evaluation of a tinnitus disability has been developed. 2. A tinnitus disability is manifested by persistent or recurring tinnitus. CONCLUSION OF LAW The criterion for a 10 percent evaluation for tinnitus is met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.87, Code 6260 (1999); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim for a separate, compensable rating for tinnitus is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, this claim is plausible. He has not alleged that any records of probative value that may be obtained, and which have not already been sought by VA or associated with his claims folder, are available. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), with regard to this claim, has been satisfied. Service connection was established in an rating decision dated January 1972 for a disability characterized as a high frequency hearing loss, left ear, with tinnitus. The RO assigned a noncompensable (zero percent) evaluation. That decision noted that the veteran manifested a hearing loss, in the 4,000 frequency of the left ear, which was considered a disability for VA purposes. He was also diagnosed with bilateral hearing loss and tinnitus, but his audiological examination of July 1971 did not reflect audiometric scores showing that his right ear hearing loss rose to the level of a disability for VA purposes. See 38 C.F.R. § 3.385 (1998) ([i]mpaired 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.) Although the issue has been characterized by the RO, in its July 1999 Supplemental Statement of the Case (SSOC), to again include the issue of a tinnitus disability as part of the veteran's left ear hearing loss disability, as it was in the original rating decision, the Board finds that due process considerations mandate that these issues be bifurcated. The Board finds that the veteran's tinnitus disability is distinct from his hearing loss disability. First, the Board notes that the veteran was service-connected for a disability characterized as a high frequency hearing loss, left ear, with tinnitus, in the January 1972 rating decision. That decision noted that the veteran manifested a hearing loss in the 4,000 frequency of the left ear. Thus, service connection for a left ear hearing loss disability was established apart from his tinnitus disability, based on this hearing loss. The veteran wrote on his VA Form 9 (his Substantive Appeal), dated October 1996, that he desired a hearing before a traveling Member of the Board (Travel Board hearing). In addition, at the end of his April 1997 RO hearing, after questioning from the hearing officer, he indicated that he desired a Travel Board hearing. Due process considerations normally require a Remand in instances such as these, for further clarification on whether the veteran still desires this hearing. However, as the Board determines that a 10 percent evaluation is warranted for the veteran's tinnitus disorder, and as that is the maximum evaluation available for that disorder under VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (hereinafter Schedule), a Remand for the purpose of clarifying the veteran's desire for a Travel Board hearing is not required on this issue. That is, a remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the BVA without the possibility of any benefits flowing to the appellant. Cf. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to the requirement that the Board articulate its reasons and bases does not "dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the [same unfavorable] result"). The severity of a tinnitus disability is ascertained, for VA rating purposes, by application of the criterion set forth the Schedule. The regulations governing evaluations for diseases of the ear and other sense organs were recently amended, effective June 10, 1999. Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 64 Fed. Reg. 25,202 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has stated that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66- 67 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO considered the amended regulations in the July 1999 SSOC. As the Board finds that a separate 10 percent evaluation is warranted under either the old or the amended criterion, the Board finds both versions equally favorable to the veteran in this case. The amended Diagnostic Code 6260 provides for a sole disability evaluation of 10 percent for recurrent tinnitus. A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100 (hearing impairment), 6200 (chronic suppurative otitis media), 6204 (peripheral vestibular disorders), or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Note following Diagnostic Code 6260 (1999). The version of Diagnostic Code 6260 effective prior to June 10, 1999, provides for a sole disability evaluation of 10 percent for persistent tinnitus, including as a symptom of acoustic trauma. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). Although the veteran's tinnitus disability is not noted to be constant, it is noted to be occasional. The report of the veteran's most recent VA rating examination, dated July 1999, diagnoses him with occasional, bilateral tinnitus. The RO determined that his occasional tinnitus did not meet the criterion of recurrent tinnitus, so that this 10 percent evaluation could be assigned under Code 6260. "Recurrent" is defined as "[o]curring or appearing again or repeatedly." (Webster's II New College Dictionary (1995)). The definition of "persistent" includes "[i]nsistently repetitive." (Webster's II New College Dictionary (1995)). Although a review of the veteran's claims file shows that his tinnitus may be occasional instead of constant, the Board finds that a 10 percent evaluation is nonetheless shown by the current evidence of record under either the old or the amended criteria. That is, the Board does not find that the preponderance of the evidence supports the view that, because his tinnitus is occasional, it is not of a sufficient frequency to rise to the level of recurrent or persistent, as defined above. Therefore, in order to afford the veteran the benefit of every doubt, the Board determines that his tinnitus disability most closely approximates a 10 percent evaluation. 38 C.F.R. §§ 4.3, 4.7 (1999). For these reasons, a separate 10 percent evaluation is warranted for tinnitus under either the old or the amended Diagnostic Code 6260. ORDER Entitlement to a 10 percent evaluation for a tinnitus disability is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND As indicated above, the veteran stated that he desired a hearing before a traveling Member of the Board, most recently in his April 1997 hearing testimony. Thus, although the Board regrets the delay, considerations of due process require that his claim be remanded in order to determine whether the veteran still desires such a hearing. In addition, the Board notes that the issue of whether new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a right ear hearing loss disability was denied in a July 1999 rating decision and that arguments contained in the VA Form 646, submitted on the veteran's behalf, dated October 1999, serve as his Notice of Disagreement with respect to this issue. Thus, this issue must also be remanded in order for the promulgation of a Statement of the Case (SOC) by the RO. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, this case is REMANDED for the following: 1. The RO should inform the veteran and his representative that they may furnish any additional evidence in support of the veteran's claims. 2. The RO should reexamine the veteran's claim for new and material evidence to reopen the claim for entitlement to service connection for a right ear hearing loss disability, to determine whether additional development or review is warranted. If no preliminary action is required, or when it is completed, the RO should prepare a SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal, or the NOD is withdrawn. He should also be afforded a hearing on the matter, if requested. However, the claim should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. 3. The RO should next ask the veteran whether he still desires a hearing before a traveling Member of the Board, and should schedule such a hearing, as appropriate. 4. The RO should then review the veteran's claims and determine whether they can now be granted. If any decision remain adverse to the veteran, he and his representative should be furnished with an SSOC and with a reasonable period of time within which to respond thereto. The case should then be returned to the Board for further review, as appropriate. No action is required by the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the issues addressed in this Remand. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. M. C. GRAHAM Acting Member, Board of Veterans' Appeals