Citation Nr: 1337259 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-05 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss. 2. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1961 to October 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of February 2010 of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss and tinnitus and assigned a 10 percent rating for each disability. In his August 2010 notice of disagreement, the Veteran stated that his service-connected tinnitus and bilateral hearing loss result in "mental anguish" and "mental stress." The issue of entitlement to service connection for a psychiatric disorder secondary to service-connected hearing loss and tinnitus has been raised by the record, 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 issue of entitlement to an increased initial rating for bilateral hearing loss 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. FINDING OF FACT The maximum 10 percent evaluation is currently in effect for tinnitus. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A. §1155 (West Supp. 2011); 38 C.F.R. §4.87, Diagnostic Code 6260 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Resolution of the Veteran's appeal of his claim for a rating in excess of 10 percent for tinnitus is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. The Veteran is already receiving the maximum evaluation available for tinnitus under the applicable rating criteria. Because no reasonable possibility exists of substantiating this claim, any deficiencies of VCAA notice or assistance are moot and will not be discussed. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). II. Entitlement to an Increased Initial Rating for Tinnitus The Veteran seeks a rating in excess of 10 percent for his service-connected tinnitus. He contends that his tinnitus is worse than the 10 percent rating assigned. Pursuant to 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, Note(2), a veteran is limited to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral or how severe or loud it is. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available. There is no legal basis upon which to award a higher schedular evaluation for tinnitus. With regard to extraschedular consideration, the evidence shows that the Veteran's service-connected tinnitus results in a constant ringing or buzzing in his ears; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected tinnitus is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim for an increased initial rating for tinnitus; there is no doubt to be resolved; and an increased initial rating for tinnitus is not warranted. ORDER Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. REMAND With regard to his claim for an increased initial rating for bilateral hearing loss, the Veteran underwent a VA examination in February 2010. Since that time, the Veteran contends that his hearing loss has deteriorated further. In his February 2011 substantive appeal, for instance, the Veteran stated that his hearing in his left ear is now "almost gone." Given the Veteran's contentions and the time since his last examination, a new VA examination is warranted to determine the current severity of the Veteran's service-connected bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to the virtual records, any relevant treatment records contained in either virtual file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz; provide the puretone threshold average; and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The VA examiner must also describe the functional effects of the Veteran's service-connected hearing loss. 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant 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 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs