Citation Nr: 1328641 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-23 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from December 1976 to December 1980 in the United States Marine Corps, and from February to December 2003 in the United States Air Force Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. It is noted by the Board that in the Veteran's May 2010 substantive appeal for the rating of his bilateral hearing loss, he referenced the 10 percent disability evaluation that had also been awarded in March 2009 for tinnitus. The RO then issued a supplemental statement of the case (SSOC) for the tinnitus rating in July 2011. In July 2011, the Veteran submitted a substantive appeal primarily referencing his hearing loss claim but also mentioning tinnitus. The Board construes the July 2011 substantive appeal as inclusive of the claim for an increased rating for tinnitus. 38 C.F.R. §§ 20.200, 20.202 (2012). The Veteran testified before the undersigned Veterans Law Judge at a June 2012 videoconference hearing and a transcript of this hearing is of record. At the June 2012 videoconference hearing, the Veteran raised the issue of service connection for a peripheral vestibular disorder. However, that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and service connection for a peripheral vestibular disorder is referred to the AOJ for appropriate action. An initial compensable rating for bilateral hearing loss is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected tinnitus is assigned a 10 percent evaluation, which is the maximum schedular rating for that disability. CONCLUSION OF LAW There is no legal basis for the assignment of a rating higher than 10 percent for tinnitus. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Here, though, the Board need not discuss whether there has been VCAA compliance in considering the claim for a higher initial rating for tinnitus because the highest possible rating for that disorder of 10 percent is already in effect. Thus, even were the Board to assume, for the sake of argument, that the Veteran has not received the required notice and assistance concerning this issue, this will be inconsequential and, therefore, ultimately amount to no more than nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors are not presumptively prejudicial and that, as a pleading party attacking the agency's decision, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice or assistance error and, moreover, beyond this, that the error is unduly prejudicial, meaning outcome determinative of a claim). Rating in Excess of 10 percent for Tinnitus In a March 2009 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent rating under 38 C.F.R. § 4.87, Diagnostic Code 6260, effective from February 23, 2009. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether tinnitus is perceived as being in one ear or each ear or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2. This is the maximum schedular rating available for tinnitus. In Smith v. Nicholson, 451 F. 3d 1344, 1350-51 (Fed. Cir. June 19, 2006), the United States Court of Appeals for the Federal Circuit affirmed VA's long-standing interpretation of Diagnostic Code 6260 that only a single 10 percent rating for tinnitus is assignable, whether or not the tinnitus is perceived unilaterally or bilaterally. In light of the foregoing, the Board concludes that the initial rating of 10 percent for tinnitus is the maximum rating assignable under 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran is not entitled to any higher rating for his tinnitus disability. As the disposition of the claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). With regard to extraschedular consideration, the Board finds that the Veteran has not required frequent periods of hospitalization for his tinnitus and the manifestations of the disability are contemplated by the schedular criteria. There is no showing that the average industrial impairment from the tinnitus would be in excess of that contemplated by the schedular criteria. Accordingly, referral of the case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd. sub nom Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER The appeal for an initial rating in excess of 10 percent for tinnitus is denied. REMAND The Veteran is currently in receipt of an initial noncompensable evaluation for bilateral hearing loss, and he seeks a compensable rating. A review of the record shows that further development is necessary. At the June 2012 videoconference hearing, held by the undersigned Veterans Law Judge, the Veteran offered testimony suggesting that even with the use of hearing aids his bilateral hearing loss had worsened. In light of the Veteran's statements suggesting a worsening of disability, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected left ear hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Also the record shows that his most recent VA compensation audiological examination was in March 2010, 3 years ago. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA audiological examination. The claims file should be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. All indicated tests should be accomplished. The examiner is specifically requested to fully describe the functional effects caused by the Veteran's bilateral hearing loss disability. The examiner should also obtain the Veteran's auditory thresholds at frequencies of 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores based on the Maryland CNC tests. 2. After the requested development has been completed, the AMC/RO should adjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs