Citation Nr: 1321698 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-26 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active service from February 1979 to April 1988. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his June 2010 VA Form 9, the appellant requested a hearing before the Board. The Veteran was subsequently scheduled for a Travel Board Hearing in April 2013; however, he failed to report for that hearing. The Veteran has not submitted good cause for his failure to appear nor has he requested to reschedule the Board hearing, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d). FINDING OF FACT The Veteran's tinnitus is currently rated at the maximum applicable rating, 10 percent, and the claims file is devoid of any evidence which would indicate that an extraschedular rating is warranted. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 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 I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The RO provided the Veteran with substantially compliant notice by a letter dated in February 2008. The claims file contains the Veteran's service treatment records (STRs), treatment records from the Veteran's private physician (Dr. G. B.), and statements provided by the Veteran. The Veteran was not afforded a VA examination; however, the Board finds that a medical opinion on the question of an increased rating for tinnitus is not necessary, as the record contains sufficient evidence to decide the claim. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Legal Criteria Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at 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. III. Factual Background In a July 1989 rating decision, service connection was granted for tinnitus and an initial 10 percent rating assigned, effective from May 1988. The Veteran submitted a claim for increased rating in February 2008. In May 2008, the RO received the July 2007 office consultation report from the Veteran's private physician, Dr. G. B., in which the Veteran's history of tinnitus is documented and the Veteran reported that his tinnitus is "worse over the past two years, worse when his surrounding environment is quiet." The Veteran denied having any trouble at work or in crowded situations. Diagnostic study sensorineural hearing loss with tinnitus. . The Veteran provided a statement in May 2008 in which he stated that over the last three years the ringing in both of his ears has increased dramatically. In his January 2009 Notice of Disagreement, the Veteran reasserted that he has "had this condition for many, many years now. It has not declined but a steady increase over noticeable ringing especially during my down time." IV. Analysis Tinnitus is evaluated under Diagnostic Code 6260, which provides a single 10 percent evaluation, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. In the instant case 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 schedular disability rating available for tinnitus under the applicable rating criteria. Regardless of whether the Veteran's tinnitus is perceived as unilateral or bilateral (in one or both ears) the outcome of this appeal does not change. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award an evaluation in excess of 10 percent for tinnitus, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected tinnitus. Here, there have been no reported manifestations of tinnitus that are outside the rating criteria. The Veteran has mainly contended that he should receive higher compensation without reporting additional symptomatology. Thus, his disability picture is contemplated by the rating schedule and the assigned schedular evaluation is adequate. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, there is no evidence of unemployability. The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has, therefore, not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a disability rating in excess of 10 percent for service-connected tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs