Citation Nr: 1335741	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  09-25 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for tinnitus.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from August 1968 to March 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  A January 2008 rating decision denied entitlement to service connection for hearing loss and a January 2009 rating decision granted service connection for tinnitus and assigned an initial 10 percent evaluation.  The Veteran appealed the assigned initial disability rating. 

In a June 2009 statement of the case (SOC), the RO affirmed the assigned 10 percent disability rating and changed the effective date from June 4, 2007, to May 31, 2007 (the date the Veteran's claim was received at the RO).  The Board notes that although the issue of entitlement to an earlier effective date was listed as an issue on the June 2009 SOC and in the September 2013 representative's statement, the Board finds there is no current earlier effective date claim on appeal as the Veteran has not filed a substantive appeal of the currently assigned effective date.  On the contrary, in his July 2009, the Veteran indicated that he was only appealing the issue of the disability evaluation assigned for his tinnitus.  Accordingly, the issue of entitlement to an earlier effective date is not before the Board.


FINDINGS OF FACT

1.  The 10 percent rating currently in effect is the maximum schedular rating for service-connected tinnitus.

2.  The evidence of record does not show that the Veteran's tinnitus disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required.



CONCLUSION OF LAW

The claim for an initial compensable rating in excess of 10 percent for tinnitus is without legal merit.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.87, Diagnostic Code 6260 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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.

The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a 'service connection' claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that, or 'immediately after,' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

In cases such as this where service connection has been granted and initial disability ratings and effective dates have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, because service connection for tinnitus has already been granted, VA's VCAA notice obligations with respect to the issues of entitlement to higher initial evaluations for these disabilities are fully satisfied, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements].  In any event, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA and Dingess by a letter mailed in June 2007.

Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, and his lay statements of argument.  Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records that could be obtained to substantiate the Veteran's appeal.

With respect to the VA examination conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's tinnitus claim.  The Veteran was afforded a VA audiological examination in January 2009.  The examination report reflects that the VA examiner reviewed the Veteran's past medical and noise exposure history, recorded the Veteran's current complaints, conducted an appropriate examination, and rendered appropriate diagnoses consistent with the other evidence of record.  The January 2009 examination report is therefore adequate for the purpose of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.

Although the Veteran's tinnitus was last evaluated almost four years ago, the Board notes that the Veteran has not subsequently asserted that such disabilities have worsened in severity since the time of his last examination, and no evidence of record submitted after January 2009 suggests that there has been a material change in the severity of the disability.  Thus, the Board does not believe that the medical evidence of record in this case is too old to adequately evaluate the Veteran.  See VAOPGCPREC 11-95 [a claim need not be remanded solely because of the passage of time when an otherwise adequate VA examination was conducted]; see also Palczewski v. Nicholson, 21 Vet. App. 174 (2007) [another VA examination is not warranted based on the mere passage of time].

Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).

In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions.  The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were insignificant and nonprejudicial to the Veteran.  The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim.  See 38 C.F.R. § 3.103 (2012).  He has retained the services of a representative, and declined an opportunity to testify at a personal hearing.  Accordingly, the Board will address the issue on appeal. Entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability

Legal criteria and schedular rating

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.

A 10 percent evaluation is currently assigned to the Veteran's tinnitus, effective May 31, 2007, under Diagnostic Code 6260.  The Veteran is seeking a higher evaluation.

The Board notes that tinnitus is evaluated under Diagnostic Code 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, Diagnostic Code 6260, note 2 (2012).

In the case currently on appeal, the RO assigned the Veteran a 10 percent evaluation for his service-connected tinnitus.  The effective date of the award of 10 percent for tinnitus is after the date of the June 13, 2003 amendment to the rating code.  Thus, a 10 percent rating is clearly the maximum rating assignable for the Veteran's bilateral tinnitus.  An increased schedular rating is therefore not available.

Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Extraschedular considerations

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 the Veteran's service-connected tinnitus is inadequate.  A comparison between the levels of severity and symptomatology of the Veteran's tinnitus with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology.

The Veteran reports a ringing and buzzing in both of his ears.  Diagnostic Code 6260 specifically instructs that a maximum 10 percent disability rating be assigned for recurrent tinnitus, which is defined as 'a noise in the ears such as ringing, buzzing, roaring, or clicking.'  Smith v. Principi, 17 Vet. App. 168, 170 (2003) [quoting Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994)].  Crucially, the Veteran reported symptoms fall directly in line with the medical definition of tinnitus.  As such, the Veteran's precise symptomatology and effects are contemplated by the rating schedule.

Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology for his service-connected tinnitus, the second and third questions posed by Thun become moot.

The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran.  Although the Veteran's tinnitus has been described as uncomfortable and annoying [as noted by the Veteran in the July 2009 substantive appeal], the Board nevertheless finds that such functional effects, 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 tinnitus causes impairment over and above that which is contemplated in the schedular 10 percent disability rating that is assigned.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired].  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.

Rice considerations

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Significantly, the record does not reflect that the Veteran's tinnitus disability prevents or impedes his ability to work, and the Veteran has not alleged as much.  Accordingly, the Board concludes that a claim for total disability based on unemployability has not been raised by either the Veteran or the record.


ORDER

Entitlement to an initial disability rating greater than 10 percent for service-connected tinnitus is denied.



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

Department of Veterans Affairs