Citation Nr: 1603119	
Decision Date: 02/01/16    Archive Date: 02/11/16

DOCKET NO.  14-35 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to a rating in excess of 10 percent for tinnitus.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1966 to April 1968, earning a Purple Heart Medal with one star.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's service-connected bilateral tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260 and does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted.  


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for tinnitus have not been met.  38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.87, Diagnostic Code (DC) 6260 (2015); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).

The Veteran seeks an increased rating for his service-connected tinnitus, for which he is currently receiving a 10 percent rating under DC 6260.  This diagnostic code allows for a single 10 percent disability rating for tinnitus regardless of whether it is unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  No higher disability rating is available under the Rating Schedule.  Accordingly, as there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or otherwise increase the Veteran's total compensation for his service-connected tinnitus, his claim for an increased rating must be denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).    

Additionally, the evidence shows that the Veteran's symptomatology does not warrant referral for an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1)(2015).  The threshold element for an extraschedular rating, "an exceptional disability picture," is met where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a claimant's service-connected disabilities.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Here, the schedular rating criteria reasonably contemplate the Veteran's symptom of ringing in the ears.  Therefore, the Board finds that he does not present an exceptional or unusual disability picture such that referral for consideration of an extraschedular rating is warranted.

The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a claimant 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 of the service-connected disabilities experienced.  Here, the Veteran's service-connected disabilities include tinnitus, bilateral mixed hearing loss and gunshot wound scars.  There is currently no evidence before the Board indicating that the combined effects of these conditions result in symptoms that are not contemplated by the rating schedule.  Thus, the Board finds that the issue of entitlement to an extraschedular rating based on the combined effects of multiple service-connected conditions is not raised by the record, and as such referral for an extraschedular rating on this basis is not warranted at this time.  

Although the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be an element of appeals for a higher rating in light of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that it is not at issue in this case.   The Veteran has not claimed that his service-connected tinnitus and/or his other service-connected disabilities prevent him from obtaining and/or maintaining employment.  Therefore, the Board finds that the current decision need not consider whether he meets the criteria for a TDIU.


ORDER

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




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs