Citation Nr: 0814481 Decision Date: 05/01/08 Archive Date: 06/26/08 Citation Nr: 0814481 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 03-14 671 ) DATE MAY 01 2008 ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 10 percent for bilateral tinnitus. ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from February 1944 to April 1946. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran's appeal has been advanced on the Board's docket by reason of his advanced age. See 38 U.S.C.A. § 7107(a)(2)(C) (West 2002); 68 Fed. Reg. 53,682-53,684 (Sept. 12, 2003) (to be codified at 38 C.F.R. § 20.900(c)). ORDER TO VACATE The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2007). In this case, the Board issued a decision on August 9, 2004, which denied the issue of entitlement to separate evaluations for bilateral tinnitus. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in an Order dated in June 2005, the Court remanded the Board's August 2004 decision for readjudication in light of Smith v. Nicholson, 19 Vet. App. 63 (2005). However, the Board notes that the June 2005 Court order did not actually vacate the Board's decision. Nevertheless, the Board considers vacatur of the August 9, 2004, Board decision inherent to the June 2005 Court Order. Accordingly, the August 9, 2004, Board decision addressing the issue of entitlement to separate evaluations for bilateral tinnitus is vacated. A new decision is being simultaneously rendered on that matter, and that decision will be entered as if the August 9, 2004, Board decision had never been issued. ORDER The August 9, 2004, Board decision is vacated. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 0421769 Decision Date: 08/09/04 Archive Date: 08/17/04 DOCKET NO. 03-14 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to separate 10 percent evaluations for each ear pursuant to the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003), for the veteran's bilateral tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from February 1944 to April 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The RO granted entitlement to service connection for tinnitus and assigned a 10 percent rating under 38 C.F.R. § 4.87, Diagnostic Code 6260. The veteran appealed the 10 percent rating assigned, arguing that he is entitled to a separate 10 percent rating for each ear. At the veteran's request a hearing at the RO was scheduled in connection with the appeal, but he later withdrew the request, indicating that wished for the case to go to the Board for a decision. 38 C.F.R. § 20.702(d) (2003). In August 2004, a Deputy Vice Chairman of the Board granted the representative's motion to advance the appeal on the Board's docket on the basis of the veteran's age. See 38 U.S.C.A. § 7101 (West 2002); 38 C.F.R. § 20.900(c) (2003). FINDINGS OF FACT 1. The 10 percent rating awarded to the veteran is the maximum disability rating allowed for tinnitus under 38 C.F.R. § 4.87, Code 6260 (2003). 2. The VA Office of the General Counsel has determined that separate ratings for tinnitus for each ear may not be assigned under Diagnostic Code 6260 or any other diagnostic code. CONCLUSION OF LAW The veteran's claim for separate 10 percent disability ratings for tinnitus of each ear pursuant to the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003) is denied as a matter of law. 38 U.S.C.A. §§ 1155, 5107A, 7104(c) (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003) (and as amended at 68 Fed. Reg. 25823, May 14, 2003); Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 2-03. REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matter -- Duties to Notify & to Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), which, among other changes, expanded the notification and duty to assist obligations owed to claimants. The United States Court of Appeals for Veterans Claims (CAVC) has held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-3 (2002) and cases cited therein. In addition, the VA General Counsel has held that VA is not required under 38 U.S.C. § 5103(a) to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-04. In the present case, the issue before the Board is a legal one as there is no dispute as to the essential facts required to resolve the matter. The outcome of the appeal is governed by the interpretation and application of the law and regulations rather than by consideration of the adequacy of the evidence or resolving conflicting evidence. Accordingly, the notice and duty to assist provisions of the VCAA are inapplicable and no further development under the VCAA is required. Criteria The regulations pertaining to the evaluation of diseases and injuries of the ears were revised effective June 10, 1999. See 64 Fed. Reg. 25,202 (1999) (codified at 38 C.F.R. § 4.85- 4.87 (2003)). According to the former rating criteria, a maximum 10 percent rating was assigned for persistent tinnitus as a symptom of head injury, concussion or acoustic trauma. 38 C.F.R. § 4.87a, Code 6260 (1992). The regulation was revised effective in June 1999 to provide a maximum 10 percent rating for recurrent tinnitus, regardless of its cause. A note following the diagnostic code indicates that a separate evaluation for tinnitus may be combined with an evaluation under Codes 6100, 6204, or other diagnostic codes, except when tinnitus supports an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Code 6260 (2003). The regulation was again revised in May 2003 to add, in pertinent part, two additional notes following the diagnostic code as follows: 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 not be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it. 68 Fed. Reg. 25,822 (May 14, 2003). Analysis By a rating decision of February 2003, the RO, among other determinations, granted entitlement to service connection for tinnitus and assigned a 10 percent rating under 38 C.F.R. § 4.87, Code 6260, effective from November 29, 2002. The RO also granted service connection for hearing loss with vertigo, evaluated as noncompensable. The veteran contends that his tinnitus is bilateral in nature and that a separate rating of 10 percent should therefore be assigned for each ear under Diagnostic Code 6260. He maintains that although the rating criteria for tinnitus found in Code 6260 were revised as of June 2003 to specifically preclude separate ratings, the pre-June 2003 versions of the Code were ambiguous and that the ambiguity should be resolved in favor of a finding that separate ratings for each ear were available under those versions. He argues that authority for separate ratings is found in 38 C.F.R. § 4.25(b), which states that disabilities resulting from a single disease entity are to be rated separately. The veteran characterizes the determination of the VA General Counsel in VAOPGCPREC 2-03 as erroneous on the basis that the ruling is contrary to the laws enacted by Congress. In analyzing the requirements of the various versions of Code 6260 and the effect of other provisions of the law, including 38 C.F.R. § 4.25(b), the nature of the disability known as tinnitus from a medical standpoint is critical. The holding in VAOPGCPREC 2-03 sets forth medical conclusions as to the disorder that the Board is obligated to accept. Specifically, in VAOPGCPREC 2- 03, the VA Office of the General Counsel observed that tinnitus is defined as " the perception of sound in the absence of an acoustic stimulus," citing The Merck Manual 665 (17th Ed. 1999). The opinion referenced the notice of proposed rulemaking resulting in the May 2003 amendment to Diagnostic Code 6260 as follows: True (subjective) tinnitus does not originate in the inner ear, although damage to the inner ear may be a precursor of subjective tinnitus. It is theorized that in true tinnitus the brain creates phantom sensations to replace missing inputs from the damaged inner ear, similar to the brain's creation of phantom pain in amputated limbs. . . . True tinnitus, i.e., the perception of sound in the absence of an external stimulus, appears to arise from the brain rather than the ears. See Schedule for Rating Disabilities: Evaluation of Tinnitus, 67 Fed. Reg. 59,033 (Sept. 19, 2002) [citing Diseases of the Ear, H. Ludman, and T. Wright, 6th ed., chapter 11; Phantom auditory perception (tinnitus): mechanisms of generation and perception, Neuroscience Research 8:221-2, P. Jasterboff, 1990; and Mechanisms of Tinnitus, Allyn and Bacon, 1995, J. Vernon and A. Moller (Eds)]. Based on this medical explanation, the General Counsel found that "the perception of noise is the disability identified in true tinnitus, and the source of this perceived noise is not in either or both ears. The undifferentiated nature of the source of the noise that is tinnitus is the primary basis for VA's practice, as reflected in the notice of proposed rulemaking, of rating tinnitus as a single disease entity." VAOPGCPREC 2-03, p. 3. Therefore, as determined by the General Counsel, in view of the undifferentiated nature of the disorder, regardless of whether tinnitus was perceived as unilateral, bilateral, or in the head, the original and the revised versions of Code 6260 authorized only a single 10 percent rating for tinnitus and precluded the assignment of separate ratings for bilateral tinnitus. The Board is bound to follow this opinion. See 38 U.S.C.A. § 7104(c) (West 2002). It must be pointed out that the evidence of record does not show that the veteran's bilateral tinnitus has been medically determined to be other than a single disability; that is, the medical evidence does not demonstrate that tinnitus that is manifested in each ear is in fact differentiated by source. The veteran has presented no evidence to that effect, nor has he suggested that there exists any such evidence. The veteran relies on 38 C.F.R. § 4.25 to support his argument that separate ratings must be assigned. Under 38 C.F.R. § 4.25(b) (2003), disabilities arising from a single disease entity (such as arthritis, multiple sclerosis, cerebral vascular accident, etc.) are to be rated separately. However, the regulation presupposes the existence of multiple disabilities or a disease with multiple manifestations, whereas tinnitus has been determined by the General Counsel not to be such a disability. The ruling that tinnitus, either unilateral or bilateral, is to be rated as a single disease entity is based on a finding that tinnitus is a unitary disability that cannot be divided into distinct and diverse impairment of separate body parts. This conclusion is consistent with other authority pertaining to the assignment of multiple ratings. The assignment of separate ratings is dependent on a finding that the disease entity is productive of distinct and separate symptoms; the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14 (2003); Brady v. Brown, 4 Vet. App. 203, 206 (1993). As the General Counsel's opinion makes clear, the disease entity of "tinnitus" has but one symptom--the perception of sound in the brain without acoustic stimulus. Because tinnitus does not produce separate and distinct symptoms, the assignment of separate ratings for the right and the left ear is not authorized. Contrary to the veteran's argument, there is no authority for the allegation that pre-June 2003 versions of the regulation were ambiguous. To the contrary, the General Counsel opinion found that the prior versions of Code 6260 compelled the same adjudicative result and that the June 2003 amendment brought about no substantive change of law. Even if the Board agreed with the veteran's lengthy analysis of why the legal basis for the General Counsel's opinion should be rejected, the opinion is binding on the Board. As a matter of law the Board is not free to accept or reject General Counsel opinions on its own motion. Rather, a federal statute expressly requires that the Board "shall be bound in its decisions by...the precedent opinions of the chief legal officer of the Department." 38 U.S.C.A. § 7104(c) (West 2002); Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000). The CAVC has held that where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Shields v. Brown, 8 Vet. App. 346, 351-52 (1995). Accordingly, as the veteran is in receipt of the highest rating for tinnitus allowed by law, the appeal the appeal for separate ratings must be denied as a matter of law. Extraschedular Consideration The Board is precluded by regulation from assigning an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. Here, the RO has provided the regulation and obviously considered its application in this case. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the CAVC clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. The Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash, 8 Vet. App. at 227. The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that no argument has been expressed by the veteran to request an extraschedular evaluation. Nor do the statements of the veteran or his representative imply that extraschedular evaluation is sought in the spirit of the basic underlying claim for increased compensation benefits for tinnitus. Indeed, the argument has been directed solely to the interpretation of the schedular criteria. Thus, the Board finds that the regulation providing for extraschedular consideration is not material to the determination in this case. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to separate 10 percent evaluations for each ear pursuant to the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6260 (2003), for the veteran's bilateral tinnitus is denied. ____________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs