Citation Nr: 1002950 Decision Date: 01/20/10 Archive Date: 02/01/10 DOCKET NO. 05-16 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from March 1958 to January 1962. This matter comes to the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, granted service connection for tinnitus with a 10 percent rating, effective November 8, 2003. The Board remanded the Veteran's current claim for additional development in November 2008. FINDING OF FACT A 10 percent evaluation is currently in effect for the Veteran's tinnitus. The evaluation is the maximum schedular evaluation assignable for tinnitus whether perceived as unilateral or bilateral in nature. 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 (West 2002 & Supp. 2009); 38 C.F.R. §4.87, Diagnostic Code (DC) 6260 (2009); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Regarding his claim for a rating in excess of 10 percent for tinnitus, the facts are not in dispute. Resolution of the Veteran's appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. The Veteran is already receiving the maximum evaluation available for tinnitus under the applicable rating criteria. Regardless of whether the Veteran's tinnitus is perceived as unilateral or bilateral, the outcome of this appeal does not change. Because no reasonable possibility exists that would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Analysis The RO originally granted service connection for a tinnitus disability in March 2004, assigning a 10 percent rating with an effective date of November 28, 2003, under 38 C.F.R. § 4.87, DC 6260. The Veteran seeks a 35 percent disability rating for tinnitus because it has the most adverse affect on his overall well being. The March 2004 rating decision does not indicate whether the disability is bilateral or only affects one ear. However, the February 2004 VA examination report notes that the Veteran reported a constant buzzing and ringing sounds in both ears. Whether tinnitus is characterized as either unilateral or bilateral in nature, however, does not impact upon the evaluation assigned for the disability. VA regulation, 38 C.F.R. § 4.25(b), and Diagnostic Code 6260, limit a Veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Accordingly, the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available. 38 C.F.R. § 4.87, DC 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Nor does the Veteran qualify for extra-schedular consideration for his service-connected tinnitus disability. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the VA examiner are the symptoms of tinnitus included in the criteria found in the rating schedule. Tinnitus is defined as noise in the ears, such as ringing, buzzing, or roaring, which is usually subjective in type. See Dorland's Illustrated Medical Dictionary (Dorland's) 1956 (24th ed., 1994). Diagnostic Codes 6260, tinnitus, provide for a maximum 10 percent rating based on tinnitus being present. 38 C.F.R. § 4.87. The February 2004 VA examiner notes that the Veteran's tinnitus is manifested by constant high pitched buzzing and ringing in his bilateral ears. When the Veteran's symptoms of tinnitus, which include only buzzing and ringing in his ears, are compared to the criteria in the rating schedule, his current maximum 10 percent rating accurately reflect the level of severity of his disability. The schedular criteria are not inadequate for rating this Veteran's tinnitus. Furthermore, the Veteran does not contend that his tinnitus interferes with his employment or causes frequent hospitalizations. See 38 C.F.R. § 3.321(b)(1). The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. The Veteran reported that tinnitus interferes with his ability to sleep, which is noted in the February 2004 VA examination report, and the Board is sympathetic to his sleep impairment problems. Private medical records dated in January 2009 note that the Veteran was prescribed Ambien, which is often prescribed for sleeping problems. If a separate disability, such as a sleep disorder, exists and it is, in fact, secondary to the service-connected tinnitus, the Veteran is advised to file a secondary service connection claim pursuant to 38 C.F.R. § 3.310. ORDER Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs