Citation Nr: 1242575 Decision Date: 12/13/12 Archive Date: 12/20/12 DOCKET NO. 09-31 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for tinnitus. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable rating for bilateral hearing loss disability. 4. Entitlement to a compensable rating for residuals of right ankle strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to March 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The issues of entitlement to service connection for a left ankle disorder and bilateral knee disorders (alternatively, as bilateral leg pain) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's initial claim of service connection for tinnitus was denied in an unappealed August 2004 decision of the RO. 2. The evidence received since the August 2004 decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for tinnitus. 3. The Veteran has tinnitus as a result of her service-connected hearing loss disability. 4. During the course of the appeal, the Veteran's hearing loss disability has been manifested by Level I hearing acuity in the right ear and Level II hearing acuity in the left ear. 5. The Veteran's residuals of right ankle strain are manifested by instability and questionable mild degenerative changes. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for tinnitus. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.159, 3.312 (2012). 2. Tinnitus was caused by service-connected hearing loss. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). 3. The criteria for a compensable disability evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5107, 5107A (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code 6100 (2012). 4. The criteria for a 10 percent disability evaluation, and no higher, for residuals of a right ankle strain have been met. 38 U.S.C.A. § 1155, 5107, 5107A (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a July 2008 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claims. VA's letter notified the Veteran of what evidence she was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed her that it would make reasonable efforts to help her get evidence necessary to support her claims, particularly, medical records, if she gave VA enough information about such records so that VA could request them from the person or agency that had them. Concerning new and material evidence, the Veteran was adequately advised of the bases for the previous denial of her service-connection claim for tinnitus in the above-referenced July 2008 VCAA letter, so that she could determine what evidence would be new and material to reopen the claim, as is required by Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal. The examiners provided sufficient rationale and explanation to support the opinion reached, and included a discussion of relevant service treatment records and post-service medical records. Moreover, the examination reports contain sufficient information to rate the Veteran's hearing loss disability and right ankle disability under the applicable rating criteria. The Board, therefore, concludes that examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained and all necessary development has been undertaken. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). I. Service Connection for Tinnitus A. Claim to Reopen In an August 2004 rating decision, the RO denied service connection for tinnitus. The Veteran was informed of the denial in September 2004, and she did not file a timely appeal. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. The August 2004 rating decision is final because the Veteran did not file a timely appeal with respect to the rating decision. 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The claim of entitlement to service connection for tinnitus may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The relevant evidence before VA at the time of the September 2004 final decision consisted of service treatment records, VA and private treatment records, and a February 2004 VA examination report which did not indicate that the Veteran experienced tinnitus. The RO denied service connection because there was no evidence of complaints of tinnitus in service, and the February 2004 examination report also did not list a complaint of tinnitus. The Board notes that the Veteran's claim for tinnitus was initially adjudicated on a direct basis, i.e. due to service, and she now asserts that tinnitus is secondary to service-connected bilateral hearing loss disability. The Board observes that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet App 545 (2008). To reopen the claim, the new evidence must show that the Veteran's tinnitus is related to service and/or service-connected hearing loss disability. Pertinent evidence received since August 2004 includes a January 2009 VA examination report noting the Veteran's report of recurrent tinnitus multiple times per day. She was unable to associate a timeframe of onset for her tinnitus. The January 2009 VA examiner noted that the Veteran's tinnitus was at least as likely as not a symptom associated with her service-connected hearing loss. Based on this newly submitted evidence, the Board concludes that sufficient evidence has been submitted to reopen the claim for service connection for tinnitus as the evidence now suggests that the Veteran has tinnitus, and the tinnitus is related to a service connected disability. See 38 C.F.R. § 3.156(a). B. Claim for Service Connection In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that when the Board addresses a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. Because the Board is granting the Veteran's claim, there is no prejudice to the Veteran in the Board's consideration of her claim on the merits. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The February 2004 VA examiner recorded that the Veteran did not report tinnitus during the examination. Likewise, an in-service October 1988 audio evaluation appears to note the Veteran did not complain of tinnitus. However, VA treatment records from 2002 included complaints of tinnitus. During the January 2009 VA examination, the Veteran reported she was unsure of the onset of her tinnitus. Although not linking tinnitus directly to service, the examiner opined that it was at least as likely as not that her tinnitus was a symptom associated with her service-connected hearing loss. While the examiner did not provide a rationale, there is no conflicting medical opinion of record. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As tinnitus is a subjective disorder, and the claims file contains a positive nexus opinion between the Veteran's tinnitus and her service-connected hearing loss, the Board finds that that entitlement to service connection for tinnitus is warranted. II. Increased Rating for Hearing Loss Disability Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, as set forth under 38 C.F.R. § 4.85. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In cases where entitlement to compensation has already been established and an increase in the assigned evaluation is in issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz , and 70 decibels or more at 2000 Hertz , the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. See 38 C.F.R. § 4.86(b). The Veteran was granted entitlement to service connection for bilateral hearing loss disability in a January 2006 rating decision. She was provided an initial noncompensable evaluation based upon a February 2004 VA audio examination. In April 2008, the Veteran filed the current claim for an increased rating for her bilateral hearing loss disability. She reported her hearing loss had worsened to the point she used hearing aids. She indicated she suffered from ear infections that made it difficult for her to wear her hearing aids. An August 2005 VA ear examination diagnosed ossicular chain disruption on the right, and possibly on the left. The examiner felt that this disorder accounted for the Veteran's conductive hearing loss, and was present from early childhood. The examiner noted that surgery may improve her hearing status and noted that she was a candidate for hearing aids. VA treatment records from 2005 onward did not contain audiometric testing results. The Veteran has not informed the VA of any outstanding private treatment records. In January 2009, the Veteran was afforded a VA audio examination. Right ear puretone threshold results were: 40, 50, 50 and 70 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The average decibel reading for the right ear was 52. Left ear puretone threshold results were: 35, 50, 65, and 80 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. The average decibel reading for the left ear was 58. The Veteran's Maryland CNC word discrimination scores were 96 percent bilaterally. The application of Table VI of the Rating Schedule to the January 2009 VA audiometric evaluation shows that the Veteran had level I hearing in his right ear and level II hearing in his left ear. Applying these levels to Table VII results in a noncompensable evaluation under Diagnostic Code 6100. Thus, these results do not provide a basis for assigning a compensable disability evaluation. Moreover, the results of the January 2009 VA examination do not reveal an exceptional pattern of hearing loss under 38 C.F.R. § 4.86. The examiner noted the Veteran's bilateral hearing loss disability affected her ability to communicate by requiring her to ask others to repeat themselves and raise their voices during conversations. She reported difficulty with speech discrimination in all listening environments, although worse with background noise. She also reported difficulty communicating via telephone. She reported occupational difficulty during her prior employment at Wal-Mart, because she would often misinterpret or not hear customers. As such, the examination included a discussion of the effects of the Veteran's bilateral hearing loss disability on her daily life per holding in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Moreover, in concluding that a noncompensable evaluation is warranted the Board has considered the Veteran's statement regarding the severity of her hearing loss disability. To the extent that the Veteran contends that her hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to her report her symptoms such as difficulty hearing and having others talk louder, is not competent to report that her hearing acuity is sufficient to warrant a compensable evaluation under VA's tables for rating hearing loss disabilities. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran has provided several credible statements, including lay statements from others, regarding her difficulty with communication. The January 2009 VA examiner noted the Veteran inconsistently used her hearing aids, and managed bilateral 96 percent speech recognition scores during her evaluation. Additionally, testing does not reveal she has an exceptional pattern of hearing loss. The Veteran's statements regarding the effect her hearing loss has on her daily life do not indicate a level of severity which would warrant a compensable rating. Based on the discussion above, the Board concludes that the weight of the evidence is against assignment of a compensable evaluation for the Veteran's service connected bilateral hearing loss disability. III. Increased Rating for Right Ankle Disability In addition to the disability rating laws and regulations listed above, disabilities of the musculoskeletal system include additional consideration. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Joints that are actually painful, unstable, or maligned due to a healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's service connected residuals of a right ankle strain is currently provided a noncompensable rating under Diagnostic Code 5271. Under his diagnostic code, a 10 percent rating is warranted for moderate limitation of ankle motion, and a 20 percent rating for marked limitation of motion. Further, under appropriate VA regulations, full range of ankle dorsiflexion is from zero to 20 degrees, and full range of ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Board observes that the words "mild," "moderate," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Additionally, Diagnostic Code 5003 provides a rating of 10 percent for a joint with degenerative arthritis established by x-ray findings, and objective evidence of limitation of motion, when the limitation of motion does not meet the criteria for a compensable rating under the appropriate diagnostic codes for the specific joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). VA treatment records contain complaints of bilateral leg pain. In May 2008, the Veteran had a normal gait and no swelling of her ankles. In January 2009, the Veteran was afforded an additional VA joints examination. She reported instability and giving-way of the right ankle, with flares occurring approximately once every two weeks. Walking on tilted ground caused her ankle to give way, which would cause a "pop" and an achy-pain in the outer malleolus area. She reported falling at various times. She denied any other pain, weakness, locking, stiffness, swelling, heat or redness. She felt she had limitation of motion and functional impairment with flare-ups, due to pain. During flare-ups she will use ace bandages. She was able to perform all activities of daily living and she noted that her right ankle has not interfered with her temporary jobs. On physical examination, the Veteran had normal shoe wear, a normal gait, and no current complaints. Her ankle was symmetrical, without redness, swelling, edema, or abnormal bony prominence. There was no abnormal alignment. She had no crepitus upon range of motion, and no complaints of pain with palpation. There were no varus or valgus angulations of the os calcis. Dorsiflexion was zero to 20 degrees, and plantar flexion was zero to 45 degrees. Repetitive range of motion did not change degrees, cause pain, incoordination, instability, weakness, fatigability, or a flare-up. An x-ray taken in conjunction with the examination noted chronic ligamentous injury to the deltoid ligament and surrounding soft tissue. There were also questionable mild degenerative changes. She was diagnosed with a resolved right ankle strain, with residual instability and chronic deltoid ligamentous injury. While she indicates some limitation of motion during flare-ups, as a result of pain, the evidence of record does not indicate that she has moderate limitation of motion of her right ankle, necessary for a compensable rating under Diagnostic Code 5271. On the contrary, the recent VA examination report revealed that the Veteran's right ankle has a full range of motion, which is not limited by repetitive motion. The evidence does show, however, that the Veteran's right ankle has residual instability as a result of chronic deltoid ligamentous injury. In light of the Veteran's report of painful motion and the objective findings of instability, the Board, giving the Veteran the benefit of the doubt, concludes that the Veteran is entitled to at least the minimum compensable rating for limitation of joint motion. However, the Veteran's report symptoms of pain and instability are not consistent with marked limitation of motion. Accordingly, a higher evaluation under Diagnostic Code 5271 is not warranted. With respect to other diagnostic codes addressing ankle disability, the Board notes that a higher rating is not warranted because the Veteran has no deformity, astragalectomy, or ankylosis of the right ankle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. The January 2009 VA examination report included x-ray findings of questionable mild degenerative changes. Diagnostic Code 5003 provides a 10 percent rating for x-ray evidence of degenerative arthritis with objective evidence of limitation of motion and cannot provide a higher rating for the Veteran. In addition, as noted above, there is no objective evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination beyond that contemplated by a rating in excess of 10 percent. Therefore, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent as contemplated by the holding in Deluca. In summary, the Board finds that the evidence supports granting a 10 percent rating for residuals of a right ankle strain. IV. Other Considerations In addition, the Board has considered whether the Veteran is entitled to a greater levels of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such exceptional disability pictures that the available schedular evaluations for the bilateral hearing loss disability and right ankle disability are inadequate. A comparison between the levels of severity and symptomatology of the hearing loss disability and right ankle disability with the established criteria for each, shows that the rating criteria reasonably describe the Veteran's disabilities levels and symptomatology. The Board notes that while Diagnostic Code 5271 does not directly address instability, 38 C.F.R. § 4.59 specifically assigns the minimum compensable rating for joints which are actually unstable. The Board also notes that while the Veteran's hearing loss does disability not warrant a compensable rating, with this decision, she received service-connection for tinnitus which will be assigned a disability evaluation when the agency of original jurisdictions implement the Board's grant of service connection. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, in the present case, the Veteran has not explicitly raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. During the January 2009 VA examinations, the Veteran stated she was planning to work in a sedentary job at a call center. In light of the foregoing, the Board finds that entitlement to TDIU has not been raised. ORDER New and material evidence having been received, the application to reopen a claim for service connection for tinnitus is allowed. Entitlement to service connection for tinnitus is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a 10 percent rating for residuals of a right ankle strain is granted. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs