Citation Nr: 1514485 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 12-31 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial schedular evaluation in excess of 10 percent for tinnitus. 2. Entitlement to an initial, compensable rating for bilateral hearing loss. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from February 1966 to February 1968. The present matter comes before the Board of Veterans' Appeals (Board) following December 2011 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The issue of an initial rating in excess of 10 percent for tinnitus was not certified to the Board. The Veteran did submit a timely VA Form 9 (Appeal to Board of Veterans' Appeals) in September 2013 for the issue. In his VA Form 9, the Veteran appears to identify that he was appealing the issues of both bilateral hearing loss and tinnitus. He further noted, I am asking for a 10 [percent] rating for this bilateral hearing loss in addition to the 10 [percent] for service connected tinnitus that I am already receiving. In light of the Veteran's above comment, the RO notified him in a subsequent September 2013 letter that it was closing his tinnitus appeal. No correspondence from the Veteran regarding the RO's letter or its action is associated with the claims file. Here, while the RO's action is understandable in light of the Veteran's September 2013 comment, nonetheless, as the Veteran has not specifically notified the RO that he wishes to withdraw his appeal of a higher rating for tinnitus, the Board will consider the issue as remaining in appellate status. FINDINGS OF FACT 1. In February 2015, prior to the promulgation of a decision, the Board received notification from the Veteran that a withdrawal of his appeal for a compensable rating for bilateral hearing loss was requested. 2. The Veteran experiences recurrent bilateral tinnitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for a compensable rating for bilateral hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. 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 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a veteran (appellant) or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal for a compensable rating for bilateral hearing loss. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Higher Rating for Tinnitus Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2014). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2014). The Veteran's tinnitus is currently evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under this diagnostic code, a 10 percent evaluation represents the maximum schedular rating allowable for tinnitus. Notes following the diagnostic code indicate that only a single evaluation is to be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head; objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) is not to be evaluated under Diagnostic Code 6260, but rather is to be evaluated as part of any underlying condition causing it. The Veteran did not file a claim of service connection for tinnitus. In a September 2011 VA audiological examination, the examiner noted the Veteran's complaint of bilateral tinnitus and opined that the tinnitus was associated with the Veteran's hearing loss. As a result, in an October 2012 rating decision, the RO granted service connection and assigned a 10 percent evaluation for tinnitus effective May 22, 2011. In a November 2012 VA Form 9 related to the Veteran's appeal for a compensable rating for bilateral hearing loss, the RO liberally construed a comment by the Veteran about his tinnitus as a notice of disagreement with the October 2012 rating decision. The issue was later perfected for appeal. As noted above, a comment by the Veteran in a September 2013 VA Form 9 appears to indicate that he is not necessarily seeking appellate review of the issue, but he did indicate that he wanted to appeal all issues listed on the statements of the case. During a September 2011 VA audiological examination the Veteran complained of recurrent bilateral tinnitus. He reported it did not interfere with his daily life, his activities, or his sleep. As noted above, under Diagnostic Code 6260 a maximum 10 percent rating is assignable for tinnitus regardless of whether it is unilateral or bilateral. As such, a higher evaluation for tinnitus greater than the current 10 percent rating assigned is not warranted; nor is there a basis for assigning separate compensable ratings for tinnitus in each ear. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2014). As the Veteran's tinnitus is rated at the maximum schedular rating, the only remaining matter for the Board to address is whether extra-schedular consideration is warranted. See 38 C.F.R. § 3.321(b) (2014); see also Thun v. Peake, 22 Vet. App. 111, 114 (2008). No specific factors warranting extra-schedular consideration have been alleged. The Veteran has reported his tinnitus does not interfere with his daily life, his activities, or his sleep. The record does not otherwise show that the tinnitus has required frequent hospitalization, or caused marked interference with employment rendering impractical the application of the regular schedular criteria. Accordingly, the Board finds that referral of this claim for extra-schedular consideration is not in order. ORDER The appeal for an initial, compensable rating for bilateral hearing loss is dismissed. An initial schedular rating in excess of 10 percent for tinnitus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs