Citation Nr: 1330481 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-17 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to July 1954. This matter comes to the Board of Veterans' Appeals (Board) from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in New York, New York. The issue of TDIU has been raised by the record (see representative's Informal Hearing Presentation dated in August 2013), but not yet addressed by the RO. Therefore, the Board is remanding it for further development consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009) (if claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted). The issue of entitlement to service connection for a sleep disorder claimed as secondary to service-connected tinnitus has been raised by the record (see August 2013 Informal Hearing Presentation), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that the Veteran withdrew a request for a Board hearing in July 2013. See 38 C.F.R. § 20.704(e) (2013). Accordingly, the Board will proceed with consideration of the claim based on the evidence of record, as he has requested. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code (DC) 6260. CONCLUSION OF LAW There is no legal basis for the assignment of an initial rating in excess of 10 percent for tinnitus. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, DC 6260 (2013); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013) (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. Tinnitus is evaluated under DC 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, note 2. In Smith v. Nicholson, 19 Vet. App. 63 (2005), the Court reversed a Board decision that found that, under pre-June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Court held that pre-1999 and pre-June 13, 2003, versions of DC 6260 required that VA assign dual 10-percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. As the current version of DC 6260 specifically prohibits a schedular evaluation in excess of a single 10 percent rating for tinnitus, however perceived, an evaluation in excess of 10 percent for recurrent tinnitus is not warranted as a matter of law in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2013), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath, 1 Vet. App. at 593. The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Concerning the issue of a higher initial rating for tinnitus, the Board finds that the schedular rating criteria contemplate the limitations and impairment caused by the Veteran's tinnitus. The Rating Schedule clearly addresses all degrees of recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. As the Rating Schedule contemplates all aspects of tinnitus and permits only a single 10 percent evaluation for such a disability, the Board finds that referral for extraschedular consideration is not warranted for bilateral tinnitus. Finally, VCAA and its implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Regarding the issue of a higher initial rating for tinnitus, as this issue concerns an initial rating and comes before the Board on appeal from the decision that also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Moreover, there is no legal basis for a higher initial rating than 10 percent for tinnitus. In such cases where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Review of VA's duty to notify and assist is not necessary in cases such as this. VA is not required to meet the duty to notify or assist a claimant where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. ORDER An initial rating in excess of 10 percent for tinnitus is denied. REMAND In Rice, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran's representative argued that entitlement to TDIU should be explored in the August 2013 Informal Hearing Presentation. As such, the issue of entitlement to TDIU is raised by the record. Hence, the issue is properly before the Board. A review of the record shows that further development is needed to properly adjudicate the TDIU claim. While the Veteran has been afforded an examination, an opinion as to his unemployability and the effect of his service connected disabilities on his employability was not rendered. The Board finds that he should be afforded an appropriate examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. In addition, he has not received VCAA notice regarding TDIU claims. Thus, corrective action by the RO in this regard is necessary. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a VCAA notice letter that pertains expressly to claims of entitlement to TDIU. 2. Schedule an examination for an opinion regarding whether it is at least as likely as not ( 50 percent or greater likelihood) that the Veteran's service-connected disabilities, in and of themselves, prevent him from securing or maintaining substantially gainful employment. A full rationale for all opinions and conclusions should be provided and a resort to speculation should be avoided. The examination report must indicate whether pertinent records in the claims file were reviewed in conjunction with the examination. 3. After the development requested above has been completed to the extent possible, the record should be reviewed. 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 Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs