Citation Nr: 1307583 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-06 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for bilateral tinnitus. 2. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 for treatment of a service-connected heart condition from September 1, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1988 to September 1991. This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, and the Appeals Management Center (AMC) in Washington, DC, on remand. In a September 2005 rating decision, the AMC granted service connection for bilateral tinnitus and assigned a 10 percent rating retroactively effective from February 12, 1999. The Veteran filed a timely notice of disagreement (NOD) with that decision assigning this rating. Since, however, he had not been provided a statement of the case (SOC) concerning his appeal of this "downstream" issue, or given opportunity in response to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this downstream claim to the Board, in August 2008 the Board remanded this downstream claim of entitlement to an initial rating higher than 10 percent for his bilateral tinnitus. See Manlincon v. West, 12 Vet. App. 238 (1999) (indicating the appropriate disposition in this circumstance is to remand, rather than merely refer, the claim). He subsequently perfected his appeal of this downstream claim. In a February 2009 rating decision, the RO denied entitlement to a temporary total evaluation due to treatment of a service-connected heart condition. The Veteran also, in response, appealed that claim. In May 2010, so during the pendency of the appeal concerning this claim, the RO granted a temporary total evaluation for his heart condition from July 17, 2002 to September 1, 2002. In his February 2009 NOD, however, he indicated that he was requesting a temporary total evaluation for a period of 13 months, so for even longer than had been awarded. Therefore, that May 2010 rating decision represents only a partial grant of the benefits sought, so this claim remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed the Veteran is requesting the maximum possible benefit, absent express indication to the contrary). His electronic ("Virtual VA") file has been reviewed as part of this appeal, in addition to his physical claims file. Instead of just paper, the Virtual VA claims processing system is now being utilized. It is a highly secured electronic repository used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. The Board also sees that, although he previously had requested a hearing, the Veteran since has withdrawn this request in written submissions dated in February 2013. See 38 C.F.R § 20.704(e) (2012). Therefore, the Board is proceeding with its consideration of his claims. In addition, a separate claim of entitlement to an increased rating for the Veteran's service-connected heart condition was remanded by the Board in August 2008. At the time of that remand, his heart condition was rated as 10-percent disabling. Subsequent rating decisions have since awarded higher ratings; however, these higher ratings are also only a partial grant of the benefits being sought. So this claim also remains in dispute. But it does not appear that a supplemental SOC (SSOC) has been provided concerning this claim, and it was not returned or recertified to the Board as still on appeal. Therefore, the Board is referring this claim of entitlement to even higher ratings for the service-connected heart condition to the RO via the AMC for compliance with the Board's August 2008 remand directives, assuming this has not already occurred. If the full benefits sought on appeal cannot be granted, then the Veteran must be provided with an SSOC concerning the portion of this claim still in dispute. This claim then is to be returned to the Board for further appellate consideration. As for these claims that are presently before the Board, the one for a temporary total disability rating under 38 C.F.R. § 4.30 for treatment of the service-connected heart condition from September 1, 2002 is being addressed in the REMAND portion of this decision below. And, just as previously, the remand will be via the AMC in Washington, D.C. FINDING OF FACT The Veteran has a 10 percent rating for his bilateral tinnitus, which is the highest possible rating under the applicable diagnostic code. CONCLUSION OF LAW There is no legal basis for assigning a schedular rating higher than 10 percent for his bilateral tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide claimants in certain cases. If the VCAA is applicable, the Board must ensure the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). For example, it has been held not to apply to claims that turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-232 (2000). And this is indeed the situation with this particular claim for a higher rating for the bilateral tinnitus since it, too, turns entirely on statutory interpretation. See Smith, 14 Vet. App. at 231-232. Thus, because the law as mandated by statute, and not the evidence, is dispositive of the appeal of this claim, the VCAA is inapplicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). As such, no further action is required pursuant to the VCAA because no amount of notice or assistance to the Veteran concerning this claim would be of any benefit to him since the claim ultimately would have to be denied, regardless. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). The Veteran has a 10 percent rating under Diagnostic Code 6260 for his bilateral tinnitus, retroactively effective from February 12, 1999. A 10 percent rating is the maximum rating available under the current rating criteria. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012). In various statements, the Veteran contends that he is entitled to a separate 10 percent rating for each ear, rather than one collective 10 percent rating, because he has bilateral as opposed to unilateral tinnitus. He correctly notes that he filed his claim in February 1999, which is the effective date of his rating. He further argues that in the case of Smith v. Nicholson, 19 Vet. App. 63 (2005), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) accepted that a separate evaluation was authorized for tinnitus for each ear for claims filed prior to June 13, 2003. The Court held in Smith that the "plain meaning" of 38 C.F.R. § 4.25(b) and the pre-1999 and pre-2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. On appeal, however, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) reversed the lower Court's holding by concluding the Court erred in not deferring to VA's interpretation of Diagnostic Code 6260, which is that a Veteran is entitled only to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); see also 38 U.S.C.A. § 7252(b) (West 2002) (commanding that "the Court may not review the schedule of ratings for disabilities . . . or any action of the Secretary in adopting or revising the rating schedule"); Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004) (holding that the Secretary's discretion over the rating schedule is "insulated from judicial review," with one recognized exception limited to constitutional challenges). The clear import of the Federal Circuit Court's holding is that regardless of the version of Diagnostic Code 6260 employed, the maximum schedular rating available for tinnitus is 10 percent. The arguments of the Veteran and his representative are inapposite to the Federal Circuit Court's holding. As there is no legal basis upon which to award a higher schedular rating than the currently assigned 10 percent at any time during the period under consideration, the Veteran's appeal must be denied as a matter of law. See Sabonis, supra. In evaluating his claim for a higher rating for this disability, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors rendering application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extra-schedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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. As concerning the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. That is to say, the record does not demonstrate the Veteran's tinnitus is manifested by symptoms falling so far outside of the Rating Schedule as to render it inadequate to compensate him for his true level of impairment. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). The mere fact that he experiences these symptoms intrinsic to this condition, however, is contemplated by his 10 percent rating for this disability, again, regardless of whether it is his perception in just one ear versus both (i.e., unilaterally or bilaterally) or even elsewhere in his head. In addition, he does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show he has required frequent hospitalizations for his tinnitus; instead, all evaluation and treatment for this disability has been on an outpatient basis, not as an inpatient, certainly not frequent inpatient. And there equally is no evidence in the record indicating his tinnitus would cause any impairment with his employment over and above that which is already contemplated in the schedular rating assigned. See 38 C.F.R. § 4.1. Therefore, an extra-schedular rating is unwarranted. ORDER The claim for an initial rating higher than 10 percent for bilateral tinnitus is denied. REMAND Temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence or surgery with severe postoperative residuals such as incompletely healed surgical wounds. See 38 C.F.R. § 4.30 (2012). An extension of one, two, or three months beyond the initial three months may be granted and extensions of one or more months up to six months beyond the initial six months period may be made, upon approval of the Veterans Service Center Manager. Id. The Veteran is seeking a temporary total disability rating under 38 C.F.R. § 4.30, so a convalescent rating, for treatment of a service-connected heart condition from September 1, 2002. In his February 2009 NOD, however, he stated that the claim is more accurately evaluated under the Rating Schedule for his condition, and he argues that the diagnostic code in effect at the time of his treatment warrants a 100 percent rating for a period of 13 months, so for longer than he was awarded. He had a temporary 100 percent rating for his service-connected heart disability under the provisions of § 4.30 from July 17, 2002 until August 30, 2002, whereupon a lesser 10 percent rating took effect on September 1, 2002, then a higher 60 percent rating as of October 19, 2009, back to a lesser 30 percent rating since June 1, 2011. Based on the facts of this case and the arguments he has advanced, the Board finds that his claim for a temporary total rating beyond the time already awarded is "inextricably intertwined" with the claim for an increased rating for his service-connected heart condition. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (claims are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As noted above, the claim for an increased rating is being referred to the RO/AMC for additional procedural development. These issues should be considered concurrently to avoid piecemeal adjudication of claims with common parameters. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Holland v. Brown, 6 Vet. App. 443, 446 (1994); Hoyer v. Derwinski, 1 Vet. App. 208 (1991). Accordingly, this claim concerning his heart disability is REMANDED for the following additional development and consideration: Readjudicate the Veteran's claim for a temporary total disability rating under 38 C.F.R. § 4.30 for treatment of a service-connected heart condition from September 1, 2002 in conjunction with the referred claim of entitlement to an increased rating for this service-connected heart condition. If the decision remains adverse to him in any regard, provide him an SSOC and allow the appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs