Citation Nr: 0427229 Decision Date: 09/30/04 Archive Date: 10/06/04 DOCKET NO. 00-07 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as due to exposure to asbestos. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling, to include entitlement to separate ratings for each ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from February 1969 to October 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1999 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a lung disorder and PTSD. The case was remanded by the Board in June 2003. While the case was in further development regarding the service connection issues, the RO denied an increased rating for the veteran's service-connected tinnitus, including a denial of separate ratings for each ear, and the veteran appealed this decision also. The issue of entitlement to service connection for PTSD addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. As discussed in the remand, the veteran submitted statements to the RO in July 2004 and to the Board in September 2004, and these statements have not been considered by the RO. It is not necessary to remand the asbestos and tinnitus claims, however, since the statements are not relevant to those claims or are duplicative of previous allegations the veteran has raised in connection to these claims. FINDINGS OF FACT 1. There is no medical evidence showing that the veteran has asbestosis or any other asbestos-related disease. 2. The veteran has chronic obstructive pulmonary disease, but there is no medical evidence showing the disorder is related to his military service, including claimed asbestos exposure. 3. The veteran has service-connected disability from constant bilateral tinnitus that is rated 10 percent disabling. 4. The veteran's tinnitus does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. A lung disorder, to include as due to exposure to asbestos, was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2003). 2. There is no legal entitlement to a schedular disability rating in excess of 10 percent for bilateral tinnitus, and the evidence does not warrant further referral for consideration of an extraschedular rating. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.87, Diagnostic Code 6260 (2003); VAOPGCPREC 2-2003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The VA has a duty to assist the veteran in the development of facts pertinent to his claim. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). This law eliminated the concept of a well-grounded claim, redefined the obligations of the VA with respect to the duty to assist, and provides an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159(b) and (c) (2003). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. However, where, as here, that notice was not provided regarding the service connection claims at the time of the initial AOJ decision, the appellant has the right to VCAA content complying notice and proper subsequent VA process. The Board finds that the appellant has been provided VCAA content complying notice and proper subsequent VA process. VCAA notice regarding the asbestos claim was provided to the veteran via an August 2001 letter. The Pelegrini II Court held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 18 Vet. App. at 120-121. The August 2001 letter, in totality, advised the veteran what information and evidence was needed to substantiate his asbestos claim. The letter also advised him what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The Statement of the Case and the various Supplemental Statements of the Case (SSOCs) also notified the veteran of the information and evidence needed to substantiate the claim. In this case, although the VCAA notice letter that was provided to the veteran did not specifically contain the "fourth element" (i.e., tell the claimant to provide any relevant evidence in his or her possession), the Board finds that he was otherwise fully notified of the need to give to the VA any evidence pertaining to the claim. When considering the notification letters and other documents in the claims file, especially a July 2003 letter, as a whole, the Board finds that he was aware that it was ultimately his responsibility to give the VA any evidence pertaining to the claim. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice provided to the veteran in August 2001 was not given prior to the first AOJ adjudication of the claim, the content of the notice when supplemented by the June 2003 Board remand and July 2003 development letter, fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the case was readjudicated and an additional SSOC was provided to the veteran in May 2004. That SSOC also contained VA's regulation implementing the VCAA (38 C.F.R. § 3.159). The claimant has been provided with every opportunity to submit evidence in support of his claim and to respond to VA notices. He was given ample time to respond to each letter, and there is no suggestion that any further development would add to the record. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board does a de novo review of the evidence and is not bound by the RO's prior conclusions in this matter. As provided by 38 U.S.C. § 7104(a), all questions in a matter which under 38 U.S.C. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans' benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-initial adjudication notice constitutes harmless error, especially since a RO determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104. In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the claimant covering all content requirements is harmless error. With respect to the VA's duty to assist, the RO obtained the VA evidence identified by the veteran. The Board is not aware of a basis for speculating that any other relevant medical records exist that have not been obtained. In the June 2003 Board remand, the Board identified additional actions for the RO to undertake regarding VA's duty to assist with regard to the claim for service connection for a lung condition due upon asbestos exposure. The RO requested additional information from the veteran regarding the claim in July 2003. In this regard the Board notes that pursuant to the last Board remand, the RO has not undertaken more development regarding asbestos exposure during service following the 2004 VA respiratory examination. The Board notes that absent any evidence of an asbestos-related respiratory disability, development pertaining to asbestos exposure during service is not called for. Under these circumstances, any deficiencies regarding the actions taken pursuant to June 2003 Board remand are not prejudicial. The Board concludes that the RO has obtained the evidence relevant to this appeal to the extent possible and has thus essentially complied with the Board's remand. See Bernard v. Brown, 4 Vet. App. 384 (1993); Stegall v. West, 11 Vet. App. 268 (1998). Under the VCAA, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the claimant suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i). In this case, the veteran was provided VA examinations on his claim for a lung condition, which included opinions as to the etiology of the claimed disorder. With regard to the claim for a increased rating for the veteran's service-connected tinnitus, the VA is not required to provide notice of the information and evidence necessary to substantiate a claim for separate disability ratings for each ear for bilateral service-connected tinnitus because there is no information or evidence that could substantiate the claim, as entitlement to separate ratings is barred by current Diagnostic Code (DC) 6260 and by the previous versions of DC 6260. See VAOPGCPREC 2-2004 (March 9, 2004). By the same token, as to the duty to assist, there is no indication that additional examination or medical evidence exists that could substantiate the claim. In this case, the Board finds that the VA has done everything reasonably possible to assist the veteran. Therefore, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The VA has satisfied its duties to inform and assist the veteran at every stage of this case. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claims. The VA has a duty to assist the appellant in the development of facts pertinent to his claims. II. Service connection for a lung disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2003). Service connection may be also granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2003). Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The veteran claims that he has a lung disorder secondary to asbestos exposure during service. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must also determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). With these claims, the RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. The RO sent the veteran a letter in August 2001 requesting these details, and he has not provided additional information. Therefore, VA has satisfied its duty to assist the veteran in developing this claim. The veteran's service medical records are negative for any suggestion of a chronic lung disorder. A December 1971 VA examination noted normal respiratory system. A VA outpatient treatment record in February 1973 noted that he was seen for an acute upper respiratory infection; a chest x-ray was normal. Chest x-rays in February 1975 and July 1977 also noted normal lungs. The first suggestion of a chronic lung disorder was in a September 1992 report of a medical evaluation from St. Mary's Medical Center that noted the veteran had a few expiratory wheezes that cleared with coughing. The impression included probable chronic obstructive pulmonary disease with a heavy smoking history. While there are some mixed findings about the presence of a chronic lung condition after September 1992, generally there have been additional subsequent findings indicating that the veteran has chronic obstructive pulmonary disease. In particular VA examinations in September 2001 and March 2004 both diagnosed chronic obstructive pulmonary disease. The veteran contends that he was exposed to asbestos during service, in that he participated in overhauling a ship, including asbestos removal and replacement. Even if the Board were to concede that his exposure to asbestos during service is plausible, see McGinty v. Brown, 4 Vet. App. 428 (1993), the claim must still be denied. There is no medical evidence indicating that the veteran has asbestosis. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). No medical professional has reported any asbestos-related changes are present in the veteran's lungs. He has been diagnosed with chronic obstructive pulmonary disease, but this condition is not a recognized disorder resulting from asbestos exposure. As there is no suggestion that the veteran's chronic obstructive pulmonary disease was present during or proximate to service, the question becomes whether there is evidence that chronic obstructive pulmonary disease is otherwise related to service. The first VA examiner (2001) reported that the veteran's breathing problem was due to his history of chronic obstructive pulmonary disease, and the second (2004) examiner noted the veteran's pack a day 40 year history of smoking and diagnosed chronic obstructive pulmonary disease due to smoking and noted that there was no evidence of asbestosis on any chest x-ray. In this case, there is no current medical evidence to suggest that the veteran's only identified lung disability, chronic obstructive pulmonary disease, is related to asbestos exposure or otherwise related to service. In this regard, the Board notes that the first suggestion of any chronic lung problem was in the late 1990's many years after the veteran's separation from service, and a VA examiner has stated that the current chronic obstructive pulmonary disease is due to the veteran's life-long smoking history rather than any event or exposure during service. There is no competent evidence to suggest that the veteran's currently diagnosed chronic obstructive pulmonary disease is related to service, including claimed asbestos exposure during service. The Board is cognizant of the fact that the veteran feels he has symptoms and/or medical disorders due to exposure to asbestos during his service; however, he lacks the medical expertise necessary to diagnose a specific medical disorder or conclude any condition is etiologically related to prior asbestos exposure. The Board is not concluding that he was not exposed to asbestos during service, but without medical evidence of a condition due to that exposure, the claim must be denied. Exposure to asbestos, in and of itself, is not considered a disability for VA purposes. The Board therefore concludes that a chronic lung disorder was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection for a lung disorder, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. An increased rating for tinnitus Service connection for sensorineural hearing loss with tinnitus has been in effect since the veteran's separation from service. The conditions were rated as 0 percent disabling until July 1973 when the Board granted an increased rating of 10 percent for the conditions on an extra schedular basis. In January 2003 the veteran applied for an increased rating for tinnitus on the basis that he should be assigned two separate 10 percent ratings for each ear. The RO denied the claim in July 2003 and rated the veteran's tinnitus 10 percent separately from non-compensable sensorineural hearing loss. The veteran's sole contention on appeal is that he is entitled to a separate rating of 10 percent for tinnitus for each ear. In this case, the veteran's disability is currently evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under that Diagnostic Code, a 10 percent evaluation, the currently assigned evaluation, represents the maximum schedular criteria for that disability. The Board has determined that this is a matter in which the law, as opposed to the evidence, is dispositive of the issue. In cases such as this, where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The regulations pertaining to the rating of tinnitus were revised, effective June 13, 2003. Prior to that date, recurrent tinnitus was rated 10 percent disabling. The 10 percent rating was the highest schedular rating assignable. A note following the former regulation provided: A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003). Diagnostic Code 6100 pertains to the rating of hearing loss. Diagnostic Code 6200 pertains to the rating of chronic suppurative otitis media, mastoiditis or cholesteatoma. Diagnostic Code 6204 pertains to the rating of peripheral vestibular disorders. A revised regulation, effective on and after June 13, 2003, provides for a rating of 10 percent for recurrent tinnitus. The 10 percent rating remains the highest rating assignable for tinnitus under the revised regulation. However, in addition to the note quoted above, the revised regulation contains two more notes as follow: Note (2): Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. Note (3): Do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003). In most situations where a law or regulation changes after a claim has been filed but before the administrative appeal process is concluded, VA must consider both regulatory versions. In this case, however, the changes to Diagnostic Code 6260 were interpretive only; they merely codified VA's practice of assigning only a single 10 percent evaluation for tinnitus, even where the sound is perceived in both ears. In other words, VA's comments merely explained or clarified the Department's intent in providing a single 10 percent disability rating under Diagnostic Code 6260. In fact, the proposed amendment explicitly stated that no substantive change was involved. See 67 Fed. Reg. 59,033 (September 19, 2002). In light of this position taken by the Secretary in the Supplementary Comments that accompanied the June 2003 amendment, the Board finds that the rule merely codified existing practice. The veteran was notified of the regulatory amendments in the January 2004 statement of the case. It has been VA's policy for several years that where tinnitus is to be rated as a disability in its own right, only one 10 percent rating is assignable for the tinnitus, whether the sound is perceived in one ear, both ears, or in the head. See 67 Fed. Reg. 59,033 (September 19, 2002); 68 Fed. Reg. 25,822, 25,823 (May 14, 2003). Moreover, effective June 13, 2003, the notes accompanying 38 C.F.R. § 4.87, Diagnostic Code 6260 now specifically require the assignment of a single evaluation for bilateral tinnitus. The Board notes that while the veteran contends that 38 C.F.R. § 4.25(b) nevertheless authorizes the assignment of separate compensable evaluations for bilateral tinnitus, VA's Secretary specifically rejected this argument in codifying the policy of assigning only a single evaluation for bilateral tinnitus. See 68 Fed. Reg. 25,822, 25,823 (May 14, 2003) ("...to rate each ear separately would be a violation of the principle of 38 C.F.R. § 4.25(b) that a 'single disease entity' is to be given a single rating"). The Board is bound not only by the law prescribed by Congress, but also by the precedent opinions of VA's Office of General Counsel. 38 U.S.C.A. § 7104(c) (West 2002). In a precedent opinion of the VA General Counsel, it was held that Diagnostic Code 6260 as in effect prior to June 10, 1999, and as amended as of that date, authorized a single 10 percent disability rating for tinnitus, regardless of whether tinnitus is perceived as unilateral, bilateral, or in the head. Separate ratings for tinnitus for each ear may not be assigned under DC 6260 or any other diagnostic code. VAOPGCPREC 2-2003. Finally, the Board notes that tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (emphasis added) (quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)). Upon consideration of the nature of tinnitus, the Board consults the regulation pertaining to Diagnostic Codes, and specifically 38 C.F.R. § 4.14 (2003). The aforementioned section expresses a clear intent to avoid pyramiding of disability evaluations. Id. Although this section is specifically directed towards prohibiting the evaluation of a single disability under multiple diagnostic codes, it logically follows that this section similarly prohibits multiple recoveries for a condition that is medically defined as single disability under a single diagnostic code. Otherwise, the clear intent of the regulation to avoid pyramiding would be obviated. Thus, in sum, the current rating criteria clearly provide only one 10 percent rating for tinnitus, whether the sound is perceived in one ear, both ears, or in the head. Similarly, the VA General Counsel opinion clearly holds that separate ratings for tinnitus for each ear may not be assigned under DC 6260 or any other diagnostic code. Nevertheless, consideration must be given to assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of the veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Under 38 C.F.R. § 3.321, an extraschedular evaluation may be assigned in exceptional cases where the schedular evaluations are found to be inadequate. The governing norm in such cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board is also not precluded from concluding, on its own, that referral for extraschedular consideration is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996) (BVA may affirm an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or reach such a conclusion on its own) (emphasis added). The Board notes, however, that the evidence of record does not suggest the existence of such an unusual disability picture so as to render application of the regular provisions impractical. It does not appear that the veteran has an "exceptional or unusual" disability; he merely disagrees with the rating schedule's maximum 10 percent rating for impairment due to tinnitus. The Board observes that it has not been contended or otherwise indicated that the service- connected tinnitus has resulted in any hospitalization or other extensive treatment regimen. In addition, there is no contention or evidence of record showing that the veteran's tinnitus interferes with any employment to a degree that would render the application of the regular schedular standards impractical. His symptoms consist of bilateral tinnitus, and such impairment is contemplated in the disability rating that has been assigned. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, 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." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Based on the evidence of record and the veteran's contentions, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Accordingly, an evaluation in excess of 10 percent for tinnitus on a schedular or extraschedular basis is not warranted. ORDER Service connection for a lung disorder is denied. An increased rating for bilateral tinnitus is denied. REMAND Pursuant to the June 2003 Board remand, the RO undertook additional development regarding the claim for service connection for PTSD. The veteran responded to a request for specific facts concerning claimed stressors in July 2004. This response was received after the RO mailed the veteran a supplemental statement of the case (SSOC) in May 2004, but before the case was certified to Board. There is a handwritten note on the side of the veteran's statement from the individual at the RO who certified the case to the Board. The note indicates that the statement was reviewed, but provided no new information or evidence as there was still a lack of specific information such as names or dates. The veteran submitted another statement to the Board in September 2004, which included information as to the circumstances of the service of the ship he was stationed on. If a SSOC is prepared before the receipt of further evidence, a SSOC must be issued to the veteran, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. 38 C.F.R. § 19.37(a). It is true that the veteran's letter fails to provide requested specifics concerning the claimed stressors, but he did include additional previously unreported claimed stressors. The veteran's letter is pertinent to his appeal in that it concerns the stressors he alleges led to developing PTSD. The letter is also not duplicative since it contained additional stressors. The RO concluded, in essence, no additional action was needed since the information in the veteran's statement was not dispositive of the PTSD issue. However, the regulations require issuance of a SSOC if the evidence is new and relevant. Accordingly, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: The RO should review the additional evidence that has been added to the claims file. If the benefit sought on appeal remains denied, give the veteran and his representative should a supplemental statement of the case. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ MICHELLE L. KANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2