Citation Nr: 0031024 Decision Date: 11/29/00 Archive Date: 12/06/00 DOCKET NO. 96-40 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Determination of the appropriate initial disability rating for tinnitus, rated as noncompensably disabling effective from October 10, 1995, and rated as 10 percent disabling effective from April 26, 1999. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from February 1958 to February 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions beginning in March 1996 by the Department of Veterans Affairs (VA) Lincoln, Nebraska, Regional Office (RO). In February 1999, the Board decided several issues, but found that additional procedural development by the RO was required with respect to the claim for a total disability rating based on individual unemployability due to service-connected disabilities. Accordingly, that issue was the subject of a REMAND. The actions requested in the remand have been completed, and the case has been returned for appellate review. The issue of the veteran's entitlement to a total rating based on individual unemployability due to service-connected disabilities is the subject of an attached remand. FINDINGS OF FACT 1. The veteran's tinnitus was persistent prior to April 26, 1999. 2. The tinnitus has not resulted in an unusual or exceptional disability picture with marked interference with employment or frequent hospitalizations. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating prior to April 26, 1999 for tinnitus are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.31, 4.87a, Diagnostic Code 6260 (1998); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 (2000) (to be codified at 38 U.S.C. §§ 5100-5103A, 5106-7, 5126). 2. The criteria for a rating in excess of 10 percent for tinnitus from April 26, 1999 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.87a, Diagnostic Code 6260 (1998 & 2000); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 (2000) (to be codified at 38 U.S.C. §§ 5100-5103A, 5106-7, 5126). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran believes that his tinnitus is more disabling than currently evaluated. As to the veteran's claim for an increased rating, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. Specifically, the RO has obtained all pertinent VA treatment records and has afforded the veteran a timely and comprehensive VA examination. Therefore, the VA has fulfilled its duty to assist the veteran in developing facts that are pertinent to his claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___(2000); (to be codified at 38 U.S.C.A. § 5103A). As a preliminary matter, the Board notes that the appeal for a higher evaluation for tinnitus arises from the initial rating decision which established service connection for the disability and assigned the initial disability evaluation. Therefore, the entire rating period is to be considered, including the possibility of staged ratings (i.e., separate ratings for separate periods of time) based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The issue has been characterized accordingly. The report of an audio - ear disease examination conducted by the VA in December 1995 shows that the veteran complained that over his 20 year career in service he had significant exposure to loud noises and had developed intermittent tinnitus. Following examination, the pertinent diagnosis was sensorineural hearing loss with tinnitus. Similarly, the report of an audiology examination conducted by the VA in December 1995 shows that the veteran reported having a periodic, bilateral, high pitched ringing tinnitus. A tinnitus questionnaire completed by the veteran and received by the RO in January 1996 shows that the veteran reported that he had ringing in his ears. He said that it lasted from a few minutes up to several hours. He said that when it happened it was very irritating. With respect to a question about how often it had happened in the last week, the veteran responded that it sometimes happened one time or more per week, and some weeks he had none. He said that he could not say how often it had occurred in the last month. He said that it came and went without warning. The report of a tinnitus and hearing loss evaluation conducted in September 1999 by a fee basis physician shows that the veteran gave a history of being exposed to jet engine noise in service. He said that for a number of years he had tinnitus which was a little more on the right than on the left side. He said that at times it was quite loud and bothersome to him, waking him up at nighttime and causing him frustration. Following examination, the pertinent diagnosis was bilateral, right greater than left, tinnitus - likely related to his high frequency hearing losses. Finally, the report of an audio examination conducted by the VA in January 2000 shows that the veteran reported having tinnitus which was now constant, bilateral, and extremely bothersome. Disability ratings are determined by evaluating the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2000). The veteran's tinnitus is rated under Diagnostic Code 6260. The RO rated the disorder as noncompensably disabling effective from October 10, 1995, and as 10 percent disabling effective from April 26, 1999. During the pendency of this appeal, regulatory changes amended the portion of the VA Schedule for Rating Disabilities pertaining to the ears. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been submitted, but before the administrative or judicial appeal process had been concluded, the law most favorable to the plaintiff must be applied. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the rating criteria for diseases of the ear in effect prior to June 10, 1999 (old criteria), Diagnostic Code 6260 provided a single 10 percent disability rating when tinnitus was persistent as a symptom of head injury, concussion, or acoustic trauma. The amended regulations (new criteria) continue to provide a single 10 percent disability rating for tinnitus, but the only requirement is that the tinnitus be recurrent. The revised criteria removed the requirement that tinnitus be a symptom of either a head injury, a concussion, or due to acoustic trauma, and that it be persistent. See 38 C.F.R. § 4.87, Diagnostic Code 6260, as amended by 64 Fed. Reg. 25202 through 25210 (May 11, 1999). The proposed amendment to the regulations indicated that tinnitus is a subjective sensation which, under certain circumstances, comes and goes. See 59 Fed. Reg. 17297 (April 12, 1994). The requirement that the tinnitus be "recurrent" means that it might not always be present, but that it returns at regular intervals. Id. It was also noted that tinnitus can be caused by a number of conditions, including injuries, acute diseases and drug reactions. Id. The restriction that tinnitus result from trauma was eliminated since the severity of disability from tinnitus does not depend on its origin. Id. In evaluating the claim for a higher initial rating, the Board notes that, with respect to the period of time prior to June 10, 1999, only the old rating criteria are applicable. Under the old criteria, absent a showing of persistent tinnitus, the disorder is a non-compensable disability. The Board finds that the evidence is at least in equipoise with respect to the presence of the manifestations contemplated for a compensable rating. The evidence shows that prior to June 10, 1999, the tinnitus was persistent albeit occurring on an intermittent basis. More recently, he has described the tinnitus as constant. However, regardless of the frequency of the episodes of attacks of tinnitus, the Board finds that it is clearly documented in the record that such episodes of tinnitus have been persistent both prior to and since April 26, 1999. Thus, the Board's interpretation of the evidentiary record with respect to the veteran's description of the frequency of his tinnitus permits the conclusion that it has been persistent since the date of the claim thereby warranting assignment of an initial compensable evaluation of 10 percent under the previous criteria for rating tinnitus effective the date of the grant of service connection. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). The Board notes further, that the old criteria must be considered from April 26, 1999 (the effective date assigned by the RO for the 10 percent evaluation) through June 10, 1999 (the date of the change in rating schedule), and either the new or the old (whichever is more favorable) from June 10, 1999. However, the Board notes that the 10 percent evaluation is the maximum rating for assignment under Diagnostic Code 6260 under either the old or the revised regulation. Thus, the veteran is already receiving the maximum evaluation under the old or new diagnostic criteria for tinnitus. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (2000). The 10 percent disability rating assigned for this disability encompasses a level of compensation for any impairment in earning capacity due to the symptoms of recurrent tinnitus. There is a lack of entitlement under the law to a higher schedular evaluation. The Board finds that an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b) (2000) as the veteran has not made any contentions, nor is there any evidence, that the disorder presents an unusual or exceptional disability picture with such factors as marked impairment of employment or frequent periods of hospitalization. Accordingly, the criteria for a disability rating higher than 10 percent for tinnitus both prior to and from April 26, 1999 must be denied. ORDER A 10 percent disability evaluation for tinnitus prior to April 26, 1999 is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 10 percent for tinnitus from April 26, 1999 is denied. REMAND The Board notes that on November 9, 2000, the President signed the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 (2000) (to be codified at 38 U.S.C. §§ 5100- 5103A, 5106-7, 5126) (the "Act"), which substantially modified the circumstances under which VA's duty to assist claimants applies, and how that duty is to be discharged. The new law affects claims pending on or filed after the date of enactment (as well as certain claims which were finally denied during the period from July 14, 1999 to November 9, 2000). Changes potentially relevant to the veteran's appeal include the establishment of specific procedures for advising the claimant and his or her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. The Act establishes very specific requirements for giving notice to claimants of required information and evidence (see Act, Pub. L. No. 106-475, sec. 3(a) (to be codified at 38 U.S.C. § 5103-5103A)). After receiving an application for benefits, VA is required to notify the claimant and the claimant's representative of any information, and any medical or lay evidence not already submitted, which is necessary to substantiate the claim. VA must include in this notice an indication of which information and evidence must be provided by the claimant and which will be obtained by VA. If VA is unable to obtain information, it must notify the claimant of which records have not been secured, explain the efforts made to obtain those records and describe any further action which VA will take. If the records sought are Federal department or agency records, VA must continue its efforts unless it is reasonably certain that such records do not exist or that further efforts to obtain them would be futile. From a review of the record, the Board notes that the RO denied the veteran's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities on the basis that the veteran's service-connected disabilities, when considered apart from his nonservice-connected disabilities such as a heart condition, bilateral shoulder condition, bilateral knee condition, and left carpal tunnel syndrome, were not the cause of the veteran's unemployability. The Board also notes that in connection with this appeal, the veteran has also been afforded VA examinations. However, while the examination reports include findings related to the veteran's various service-connected disabilities, the examiners were not asked to express an opinion as to the impact of the veteran's service-connected disabilities alone on his ability to retain and maintain gainful employment. Only the February 1996 orthopedic examination report includes an opinion that "[t]he physical examination performed today, 2-10-96, demonstrates no significant abnormalities to make [the veteran] unemployable." The Board notes, however, that the examiner only performed an orthopedic examination, and did not review the severity of the non-orthopedic service- connected disabilities such as the asbestosis. In this regard, the Board notes that although the requirement of submitting a well-grounded claim in order to trigger VA's duty to assist a veteran in obtaining evidence necessary to substantiate a claim for VA benefits has been eliminated by the recent legislation set forth above, it is useful to observe that the United States Court of Appeals for Veterans Claims (Court) has stated that "[w]here the veteran submits a well-grounded claim for a TDIU rating, as he has done here, the BVA may not reject that claim without producing evidence, as distinguished from mere conjecture, [that] the veteran can perform work that would produce sufficient income to be other than marginal." Colayong v. West, 12 Vet. App. 524, 539 (1999), quoting from Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Colayong, the Court reversed the decision of the RO and the Board that the veteran was not entitled to total disability rating based upon individual unemployability by reason of service-connected disabilities, based in part upon a lack of evidence contrary to a finding of TDIU. The Board finds that it may substantiate the veteran's claim that he is unemployable based solely on his service-connected disabilities to obtain a medical opinion in this case addressing the impact of the veteran's service-connected disabilities alone on his employability. In this regard, the Board notes that the veteran was most recently afforded a VA examination in 1999, following the claim in April 1999 that the veteran's service-connected disabilities had worsened, which did not result in any increase in assigned disability evaluations except for service-connected tinnitus. However, the examiners did not indicate the impact of these disabilities on the veteran's ability to be gainfully employed. See Friscia v. Brown, 7 Vet. App. 294, 297 (1995) (VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work.). . Under the circumstances, further review by the RO with consideration of the recently revised duty to assist provisions of 38 U.S.C.A. § 5103A should be accomplished to afford the veteran due process of law. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified as amended at 38 U.S.C. § 5103A). Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the opinion of the Board that further development of the case is desirable. Accordingly, this case is REMANDED for the following actions: 1. The RO should arrange for a general medical examination of the veteran to ascertain the current nature and severity of the veteran's service-connected disorders. The claims file and a copy of this remand must be made available to and reviewed by the examiner(s) in conjunction with such examination, and the examination report should reflect such review. Any special studies deemed by the examiner(s) to be indicated should be conducted. The examiner(s) must be requested to express an opinion as to the impact of the service-connected disabilities, in the aggregate, upon the veteran's ability to obtain and retain substantially gainful employment. The examiner(s) must essentially opine as to whether the service-connected disabilities (without regard to any nonservice-connected disabilities and without regard to advancing age) have rendered the veteran unable to work. Any opinion(s) expressed in this regard must be accompanied by a complete rationale. 2. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. The RO also is requested to review the entire file and undertake any additional development necessary to comply with the Veterans Claims Assistance Act of 2000. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the Regional Office. Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Veterans Law Judge Board of Veterans' Appeals - 11 - - 10 -