Citation Nr: 1513243	
Decision Date: 03/27/15    Archive Date: 04/03/15

DOCKET NO. 13-09 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1. Entitlement to an initial compensable rating for a bilateral hearing loss disability.

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

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1979 to October 1987.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In that decision, granted service connection for a bilateral hearing loss disability and tinnitus, assigning noncompensable and 10 percent ratings respectively, and denied TDIU.

In his April 2013 substantive appeal the Veteran requested a Travel Board hearing before a Veterans Law Judge. The Veteran was properly notified of the date and time of the hearing in March 2014 and April 2014 correspondence, but he failed to report for the hearing, without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d).

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issues of entitlement to an initial compensable rating for a bilateral hearing loss disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The current 10 percent rating for tinnitus is the maximum schedular rating, whether the sound is perceived in one ear or both ears.





CONCLUSION OF LAW

The claim for a separate schedular 10 percent rating for tinnitus in each ear is without legal merit. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). However, with respect to the claim for a higher evaluation for tinnitus, VA is not required to provide notice of the information and evidence necessary to substantiate a claim for a higher evaluation for bilateral service-connected tinnitus because there is no information or evidence that could substantiate the claim, as entitlement to separate ratings is barred by current Diagnostic Code 6260 and by the previous versions thereof. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 

Similarly, there is no additional duty to assist the claimant concerning this claim. VA is not required to assist a claimant in developing evidence to substantiate a claim where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See 38 U.S.C.A § 5103A; Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-2004 (June 23, 2004). As such, VA had no obligation to provide notice or assistance, and therefore further discussion of those duties is not warranted. 

II. Increased Schedular Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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.

The Veteran contends he is entitled to an initial rating in excess of 10 percent for tinnitus. Tinnitus is evaluated under Diagnostic Code 6260, under which a single 10 percent evaluation is assigned for "recurrent" tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. A single rating of 10 percent is assigned regardless of 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); see also Smith, 451 F.3d 1344 (upholding the interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, regardless of where perceived).

The Board notes the Veteran's complaints that his tinnitus is worse than currently rated. However, the Veteran is already in receipt of the maximum allowable rating for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); see also Smith, 451 F.3d 1344. As such, there is no legal basis upon which to award a higher rating or separate schedular ratings for tinnitus in each ear, the Veteran's claim must be denied. See Sabonis, 6 Vet. App. 426.

III. Extraschedular Rating

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," 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." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

The first Thun element is not satisfied here. The Veteran's tinnitus is manifested by signs and symptoms such as ringing in the ears. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the evaluation of hearing impairment. 38 C.F.R. §§ 4.87, Diagnostic Code 6260. The rating schedule contemplates recurrent tinnitus and whether it is experienced unilaterally, bilaterally, or in the head. See id.; see also Smith, 451 F.3d 1344. 

Given the variety of ways in which the rating schedule contemplates tinnitus, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. There is nothing exceptional or unusual about the Veteran's tinnitus because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted.

Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service connected for tinnitus and bilateral hearing loss. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's tinnitus combines or interacts with his other service-connected disability in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.


ORDER

Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is denied.


REMAND

VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran indicated in his April 2013 substantive appeal that the audiological examiner told him during the examination to just guess, even if he didn't think he heard a tone. The Veteran and his representative have both argued that this instruction lead to erroneous test results that are not representative of the Veteran's current hearing loss. There is no evidence that this instruction was not given, nor is there any evidence indicating that the Veteran's assertions are not credible. Therefore, it cannot be shown that the instruction was not given, and as such the accuracy of the results has been called into question. Further, there are no more recent audiological examinations of record. Therefore, the Board finds it must remand the claim for a new examination with a different audiological examiner so that the current nature and severity of the Veteran's bilateral hearing loss disability can be determined. 

As the issue of entitlement to TDIU is inextricably intertwined with the issue of an increased rating for bilateral hearing loss, TDIU must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). While on remand, appropriate efforts must be made to obtain any records, whether VA or private, identified and authorized for release.

Accordingly, the case is REMANDED for the following action:

1. Appropriate efforts should be made to obtain and associate with the case file any further medical records (private and/or VA) identified and authorized for release by the Veteran.

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them.

2. After completing the development listed above to the extent possible, schedule the Veteran for an audiological examination with a VA examiner, other than the examiner who conducted the July 2012 audiological examination, to determine the current nature and severity of his bilateral hearing loss disability. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. 

Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and their results included in the examination report.

3. Thereafter, readjudicate the issue on appeal, to include TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond.

The Veteran has the right to submit additional evidence and argument on the 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 2014).



______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs