Citation Nr: 0633097 Decision Date: 10/25/06 Archive Date: 10/31/06 DOCKET NO. 97-15 390 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling. 3. Evaluation of major depressive disorder, currently evaluated as 10 percent disabling. 4. Entitlement to an effective date earlier than January 27, 2004, for the grant of service connection for major depressive disorder. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and C.N.B., M.D. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant had active service from September 1984 to March 1992. This case initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 1997 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued a 20 percent rating for chronic lumbosacral strain. The veteran appeared and offered testimony at a hearing before a hearing officer at the RO in March 1997. A transcript of that hearing is of record. Thereafter, by a rating action in March 1997, the RO assigned a 10 percent evaluation for tinnitus. In March 2003, the Board denied the claims of entitlement to an evaluation in excess of 20 percent for lumbosacral strain, and entitlement to an evaluation in excess of 10 percent for tinnitus. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2003, the Court vacated the Board decision and remanded the matter to the Board for readjudication. Subsequently, in June 2004, the Board remanded the case to the RO for additional development in compliance with the Veterans Claims Assistance Act of 2000 (VCAA). A supplemental statement of the case (SSOC) was issued in November 2004. On May 12, 2005, the veteran and Dr. C.N.B. appeared and offered testimony at a hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing is also of record. In September 2005, the Board again remanded the case to the RO for further evidentiary development. The case is once more before the Board for appellate consideration. The Board also notes that, in a rating action of August 2005, the RO granted service connection for major depressive disorder; an evaluation of 10 percent was assigned, effective January 27, 2004. Subsequently, in July 2006, the veteran submitted a notice of disagreement (NOD) with the effective date assigned for the grant of service connection as well as with the disability rating assigned. However, a review of the record shows that the RO has not issued a statement of the case (SOC) with regard to the claims for an earlier effective date for the grant of service connection and a higher rating for major depressive disorder. So, for the reasons discussed below, these issues must be remanded to the RO as opposed to merely referred there. See Manlincon v. West, 12 Vet. App. 328 (1999). Unfortunately, as will be explained in the REMAND section following the decision, the issue of entitlement to an increased rating for lumbosacral strain must be remanded as well. FINDINGS OF FACT 1. The veteran has been assigned a 10 percent rating for bilateral tinnitus; this is the maximum disability rating authorized under Diagnostic Code 6260. 2. The veteran's tinnitus does not present an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2002, 2006); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION By a rating action in December 1992, the RO granted service connection for bilateral hearing loss, with occasional tinnitus; a 0 percent rating was assigned. Subsequently, the veteran requests an increased evaluation for tinnitus. In a rating action dated in January 1997, the RO confirmed the 0 percent rating assigned for bilateral hearing loss with occasional tinnitus. However, by a rating action in March 1997, the RO assigned a 10 percent disability rating for tinnitus under 38 C.F.R. § 4.87, DC 6260, effective July 1, 1996. The veteran perfected a timely appeal to that decision. DC 6260 was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2 (2006). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the Court of Appeals for Veterans Claims reversed a Board decision which had found that, under pre-June 2003 regulations, no more than a single 10 percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Court held that pre-1999 and pre-June 13, 2003, versions of DC 6260 required that VA assign dual 10 percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. VA appealed the Court's decision in Smith to the U.S. Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources based on court precedent that might ultimately be overturned on appeal, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of tinnitus claims affected by Smith. The specific claims affected by the stay essentially included all claims in which a claim for compensation for tinnitus was filed prior to June 13, 2003, and a disability rating for tinnitus of greater than 10 percent was sought. Recently, the Federal Circuit reversed the Veterans Court's decision in Smith, and affirmed VA's longstanding interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing U.S. Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations is entitled to substantial deference by the courts as long as that interpretation is not plainly erroneous or inconsistent with the regulations. Id. at 1349- 50. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of DC 6260 is plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that the Veterans Court had erred in not deferring to VA's interpretation. As a consequence of the Federal Circuit's holding, on July 10, 2006, the Secretary rescinded the stay which had been imposed on all claims affected by Smith, and directed the Board to resume adjudication of the previously stayed claims consistent with VA's longstanding interpretation that a single 10 percent disability rating is the maximum rating available under DC 6260, regardless of whether the tinnitus is perceived as unilateral or bilateral. Therefore, under both the new and the old regulations, the highest schedular rating for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260 (2002); 38 C.F.R. § 4.87, DC 6260 (2006). To that end, the only way for the veteran to be granted a disability rating higher than the current 10 percent is by applying an extraschedular rating. See 38 C.F.R. § 3.321(b) (2006). The veteran does not argue, and the evidence does not suggest, that symptoms attributable to tinnitus would be more appropriately evaluated under any alternate diagnostic code or that it manifests in symptoms other than ringing in the ear. There is no evidence suggesting that the veteran is unemployed due to his tinnitus, and there is no evidence that he has been hospitalized specifically for that condition or that it has prevented him from working or significantly interfered with work. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2006). The veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher evaluation for tinnitus, the veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of the Veterans Claims Assistance Act have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). ORDER An increased evaluation for tinnitus is denied. REMAND This case was before the Board previously in September 2005, at which time it was remanded to the RO to have the veteran examined, in order to determine the severity of his low back disorder. The veteran underwent a spine examination in April 2006. However, a review of the record subsequent to the September 2005 Board remand shows that the RO failed to issue a supplemental statement of the case (SSOC) to address the pertinent findings from the April 2006 VA examination, as well as additional evidence added to the claims file subsequent to the most recent SSOC in November 2004. 38 C.F.R. § 19.31(b) (1) (2006) requires that the RO issue an SSOC after it receives additional pertinent evidence, following the issuance of the SOC and before certification of the appeal to the Board. Therefore, the Board concludes that a remand is required in order to provide the veteran with the required SSOC. The Board also notes that, as mentioned in the introduction, the August 2005 rating decision granted service connection for major depressive disorder and assigned 10 percent evaluation, effective January 27, 2004. Received in July 2006 was a statement from the veteran's attorney, wherein he expressed disagreement with the effective date as well as the rating assigned to the service-connected major depressive disorder. The Board notes that a statement of the case (SOC) addressing the matter of entitlement to an effective earlier than January 27, 2004 for the grant of service connection and entitlement to a higher rating for the service-connected major depressive disorder not yet been issued. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, a remand is necessary for issuance of an SOC. To ensure that VA has met its duty to assist and to ensure full compliance with due process requirements, the Board must REMAND this case to the RO via the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO should readjudicate the veteran's claim, in light of any additional evidence added to the records assembled for appellate review; in so doing, the RO should consider the April 2006 VA examination report. If the benefit requested on appeal remains denied, the veteran and his attorney should be furnished a supplemental statement of the case (SSOC), which addresses all of the evidence obtained since the November 2004 SSOC. The veteran and his attorney should be given an opportunity to respond. 2. The RO must issue an SOC concerning the claims of entitlement to an effective date earlier than January 27, 2004 for the grant of service connection for major depressive disorder, and entitlement to a rating in excess of 10 percent for major depressive disorder. The veteran is hereby informed that he must submit a timely and adequate substantive appeal (VA Form 9 or equivalent statement) to perfect an appeal to the Board concerning the issues in question. If, and only if, he perfects an appeal concerning this additional issues should it be returned to the Board. After the above action has been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this REMAND are to further develop the record and to accord him due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs