Citation Nr: 1333979	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-30 885	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an effective date earlier than July 24, 2008, for a grant of service connection for tinnitus.

2.  Entitlement to a compensable evaluation for bilateral hearing loss.

3.  Entitlement to an evaluation in excess of 10 percent for tinnitus.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from July 1971 to July 1975 in the US Navy.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In April 2010, the Veteran testified before a Decision Review Officer at the RO.  A hearing transcript is associated with the claims file.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDINGS OF FACT

1.  VA received an application for compensation for tinnitus on July 24, 2008.

2.  During the appeal period, hearing loss disability was manifested by an average pure tone decibel loss in the right ear of 55 with 88 percent speech discrimination, 51 with 100 percent speech discrimination, and 51 with 96 percent speech discrimination; for the left ear, there was an average pure tone decibel loss of 48 with 92 percent speech discrimination, 49 with 92 percent speech discrimination, and 51 with 96 percent speech discrimination.

3.  The Veteran's service-connected bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.



CONCLUSIONS OF LAW

1.  The claim for an effective date earlier than July 24, 2008, for a grant of service connection for tinnitus is without legal merit.  38 U.S.C.A. §§ 5101(a), 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2013); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

2.  The criteria for a compensable evaluation for bilateral hearing loss disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2013).

3.  The claim of entitlement to a higher disability rating for tinnitus is without legal merit. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.87, Diagnostic Code 6260 (2013), Diagnostic Code 6260 (2005); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim."  Mason v. Principi, 16 Vet. App. 129, 132 (2002).  Where the law, and not the evidence, is dispositive of a claim, the VCAA is not applicable.  Id. (VCAA not applicable to a claim for non- service-connected pension when the claimant did not serve on active duty during a period of war, as required by law).  The Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004).

Because the law is dispositive in the appeal of the tinnitus claims (earlier effective and disability evaluation), the Board finds that the provisions of the VCAA are not applicable to these claims.  Notwithstanding, VA satisfied its duty notify and assist as to these claims.  The Veteran's tinnitus claims arise from his disagreement with the initial disability evaluation and effective date assigned following the grant of service connection for tinnitus.  The RO provided the Veteran with a fully adequate VCAA notice letter in September 2008 prior rating decision on appeal.  In cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven.  As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  See also Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim).

As for the claim for increase for bilateral hearing loss, VA provided a VCAA notice letter to the Veteran dated in July 2008, prior to the rating decision on appeal.  VA further satisfied its duty to assist the Veteran.  VA obtained all relevant medical records and associated these with the record.  It is noted that VA requested in an April 2010 letter to the Veteran that he provide a release to VA for private medical records he had previously identified.  No response was received from the Veteran.  Also, VA afforded the Veteran VA audiological examinations.  The reports of examination described the hearing loss disability in sufficient detail so that the Board's "evaluation of the claimed disabilities will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  In this regard, the Board observes that the VA examinations conducted during the course of the appeal were performed by a neutral, skilled provider who reviewed the file and offered sufficient rationale for the conclusions reached.  Moreover, the most recent VA hearing examination included a discussion of the effect of the Veteran's hearing disability on occupational functioning and daily activities and not asserted that there is any deficiency in the VA examination.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Lastly, VA afforded the Veteran a hearing on appeal.  A DRO hearing was conducted in April 2010.  A hearing transcript is associated with the claims file.

Accordingly, the Board will address the merits of the claim.


II. Entitlement to an Earlier Effective Date

The Veteran seeks an effective date earlier than July 24, 2008, for the grant of service connection for tinnitus.  He avers that an earlier effective date is warranted because he should have been told in service to apply for benefits, VA should have known he was entitled to compensation for tinnitus in view of his award of service connection for hearing loss disability, and because he has had tinnitus since service.

Pertinent Laws and Regulations

Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received.  38 U.S.C.A. § 5110(a) (West 2002).  If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation.  38 U.S.C.A. § 5110(b)(1).

As to what constitutes a claim, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim; such an informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  Ultimately, a specific claim in the form prescribed by the Secretary of the VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  If VA receives an informal claim without a formal claim having been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a).

Analysis

The Board has considered the Veteran's arguments.  However, the Board is constrained by the applicable law and regulation governing the assignment of effective dates for claims.  The applicable law and regulation provide that the effective date of an award of service connection based on a claim received more than one year after a veteran's discharge from service will be the later of the date of receipt of claim or the date entitlement arose.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

In the case at hand, the evidence reflects that the Veteran was separated from active service in July 1975.  It further reflects that VA received an original VA compensation claim, VA Form 21-526, on November 22, 2002, many years after service separation.  This original claim was for hearing loss disability, not tinnitus.  Correspondence from the Veteran, received by VA on July 24, 2008, reflects the first communication to VA on the matter compensation for tinnitus.  These facts are not in dispute.  Therefore, the claim for an effective date earlier than July 24, 2008, must be denied as a matter of law since it is without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

To the extent that the Veteran avers that VA should have recognized an informal claim for service connection for tinnitus contemporaneous with the claim for hearing loss, the Board disagrees.  The Veteran's 2002 original VA compensation claim is clear and addresses only hearing acuity, making no mention of ringing or other disturbing sounds in the ears.  Also, the Veteran reported on VA audiological evaluation dated in April 2003 that his symptom of ringing ears began in "about 1980," many years after service discharge; as such, it is unreasonable to suggest the RO should have discerned a claim for tinnitus at that time.

Accordingly, notwithstanding that the Veteran has had longstanding tinnitus predating the award of VA compensation, VA did not receive a claim, informal or formal, prior to July 24, 2008.  Unfortunately, the Veteran's contentions are essentially framed in equity.  The Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis.  As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal.

As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
II.  Evaluation of Bilateral Hearing Loss Disability and Tinnitus

The Veteran seeks a compensable evaluation for bilateral hearing loss disability and an initial evaluation in excess of 10 percent for tinnitus.  Both written statements and testimony from the Veteran reflect his belief that his disabilities are sufficiently severe to warrant higher evaluations.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Pertinent Laws and Regulations

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.  The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re- evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

Evaluation of Bilateral Hearing Loss Disability

In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII.  Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second.  See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The schedular evaluations are intended to make proper allowance for improvement by hearing aids.  38 C.F.R. § 4.86.

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86.  Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b).

After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against a compensable schedular evaluation for bilateral hearing loss disability.  The evidence of record does not more nearly reflect the criteria for a compensable evaluation.  38 C.F.R. § 4.7.

On the authorized VA audiological examination in April 2008, speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear along with pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
25
85
85
55
LEFT
10
20
75
85
48

On the authorized VA audiological examination in March 2010, speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 92 percent in the left ear along with pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
20
80
85
51
LEFT
10
20
75
90
49

On the authorized VA audiological examination in July 2012, speech audiometry revealed speech recognition ability of 96 percent in the right and left ears along with 

pure tone thresholds, in decibels, as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
25
75
80
51
LEFT
15
25
80
85
51

Applying 38 C.F.R. § 4.85, Table VI, to the above audiological findings, the Veteran has a numeric designation on each evaluation of I for the right and I for the left ear.  Application of 38 C.F.R. § 4.85, Table VII results in a finding that a 0 percent disability evaluation for the service-connected bilateral hearing loss is warranted.

None of the pure tone thresholds shown on the VA audiological evaluations dated in April 2008, March 2010, and July 2012 reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable.  Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented pure tone threshold for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, and thus, neither Table VI or Table VIa is applicable.  38 C.F.R. § 4.86(b).

To the extent that the Veteran reports that his acuity is worse than evaluated, the Board has considered his statements.  This evidence is both competent and credible in regard to reporting worsening hearing acuity.  However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel reading to his current acuity problems.  As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry.  See Lendenmann, supra.

Accordingly, the claim for a compensable evaluation for bilateral hearing loss disability is denied.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  The Board believes that a uniform disability evaluation is warranted.  Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating.  See Hart, supra.

Evaluation of Tinnitus

The Veteran seeks an initial evaluation in excess of 10 percent for tinnitus.  Diagnostic Code 6260 provides a maximum 10 percent evaluation for tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260.

In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single disability evaluation for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted.

The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus.  38 C.F.R. §4.87, Diagnostic Code 6260.  As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


Extraschedular Consideration

Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance.  See also VAOPGCPREC 6-96.  However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

Under the applicable criteria, an extraschedular disability rating is warranted 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); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Martinak v. Nicholson, 21 Vet. App. 447, 453-4 (2007), the Court held that a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration.  The Court noted that, unlike the rating schedule for hearing loss disability, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether an extraschedular rating is warranted.  See Martinak, 21 Vet. App. at 455.

Notably, the 2008 VA examiner noted that the Veteran reported difficulty hearing in meetings at work, especially if there is more than one person talking and he described the functional impact as "embarrassing."  The Veteran reported at this time that his tinnitus was very disabling, explaining that he has to sleep with the radio on.  The 2010 VA examiner noted that the effect of tinnitus on occupational functioning was "significant."  The Veteran reported constant tinnitus and difficulty hearing.  The 2012 VA examiner noted that the Veteran denied that his hearing loss impacted his ability to work but that it had made it difficult to hear people on the phone and when he is in large meetings.  As for tinnitus, the Veteran described this as bothersome on a daily basis.  He stated that "The ringing is the worst" and "I have to go to bed with music on or I can't sleep."

Based on these reported descriptions of the functional effects of the Veteran's hearing loss disability and tinnitus, the Board finds that the recent VA examination report is in compliance with Martinak, and that the evidence of record is sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b).

Under Thun v. Peake, 22 Vet App 111 (2008), decided after the Court's decision in Martinak, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must 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.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for hearing loss disability and tinnitus is inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's hearing loss with the established criteria found in the rating schedule for hearing loss shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers pure tone decibel hearing loss and speech discrimination hearing loss.  As for tinnitus, the 10 percent evaluation for recurrent tinnitus is an acknowledgement of the bothersomeness of that disorder and its interference to some extent with daily and occupational functioning.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.  In any event, the Board observes that, even if the available schedular evaluation for the Veteran's hearing loss disability and tinnitus were inadequate [which it manifestly is not], the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend.

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran.  As noted above, the Veteran has reported that he has trouble hearing and is bothered by the ringing in his ears, which requires him to listen to other sounds to get to sleep.  The Board however finds that these functional effects caused by the Veteran's hearing disability, which undoubtedly exist, do not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating.

In short, there is nothing in the record to indicate that the Veteran's service-connected hearing loss disability or tinnitus cause impairment with employment over and above that which is contemplated in the assigned schedular rating.  The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

In this case, the manifestations of the disability are contemplated by the schedular criteria governing hearing loss disability.  Therefore, referral for extra-schedular consideration is not warranted.



ORDER

An effective date earlier than July 24, 2008, for a grant of service connection for tinnitus is denied.

A compensable evaluation for bilateral hearing loss is denied.

An evaluation in excess of 10 percent for tinnitus is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs