Citation Nr: 1752680	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  10-31 573A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a disability evaluation in excess of 10 percent for tinnitus, to include on an extraschedular basis.


REPRESENTATION

Veteran represented by:	Adam Neidenberg, Attorney.


ATTORNEY FOR THE BOARD

J. Fowler, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the United States Army from October 1977 to February 1978.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In January 2016 and March 2017, the Board remanded this issue for additional development, which was completed.  See Stegall v. West, 11 Vet. App. 268 (1998).  As discussed below, the Veteran was provided with adequate VA examinations and his case was referred to the Director of the Compensation Service for consideration of an extraschedular rating.  The issue is now before the Board for further appellate action.


FINDING OF FACT

The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition and the effects of the Veteran's tinnitus are contemplated by the schedular rating criteria.


CONCLUSION OF LAW

The criteria have not been met for an increased rating greater than 10 percent for tinnitus, to include on an extraschedular basis.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.7, 4.21, 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).






REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA's duty to notify was satisfied by a July 2012 letter.  38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran has not identified any additional records that should be obtained prior to a Board decision.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Veteran was provided multiple VA examinations in August 2017.  These examinations are adequate for the purposes of the instant claim, as they involved a physical examination of the Veteran and review of the claims file, and provide discussions of pertinent symptomatology, functional impact, and sufficient rationales for all diagnoses and opinions expressed.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Relevant Laws and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. §1155; 38 C.F.R. §4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. §4.7.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Diagnostic Code 6260 was revised effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, whether tinnitus is perceived as being in one ear or each ear or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2.  In Smith v. Nicholson, 451 F. 3d 1344, 1350-51 (Fed. Cir. 2006), the Federal Circuit affirmed VA's long-standing interpretation of Diagnostic Code 6260 that only a single 10 percent rating for tinnitus is assignable, whether or not the tinnitus is perceived unilaterally or bilaterally. 

The Veteran's tinnitus is rated 10 percent under Diagnostic Code 6260.  38 C.F.R. § 4.87.  Under that Diagnostic Code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  The maximum schedular rating available for tinnitus is 10 percent.  38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith, 451 F.3d. 1344 (Fed. Cir. 2006).  As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, a higher schedular rating must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, there must be a comparison between the level of severity and the symptomatology of the Veteran's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral to the Director of the Compensation Service for consideration of an extraschedular rating is required.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

This case has already been referred to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b).  In the Board's January 2016 remand, it stated it was not clear that the Veteran's level of tinnitus and symptomatology are contemplated by the schedular evaluation.  The Board further noted that conflicting medical evidence exists regarding whether the Veteran's tinnitus prevents him from employment.  Based on the uncertainty, and interpreting the evidence most favorable to the Veteran, the Board referred the matter to the Director of Compensation Service without a Thun analysis.  The Board did not specifically find that the Veteran's schedular rating was inadequate, nor did it find the Veteran suffered marked interference with employment.

In November 2016, the Director of Compensation Service denied an increased rating for tinnitus on an extraschedular basis.  In March 2017, the Board remanded this issue for a VA examination to determine the nature and severity of the Veteran's tinnitus, including whether the Veteran has Meniere's disease.

In August 2017, the Veteran was afforded two VA examinations.  The first examination focused on the severity of the Veteran's tinnitus and whether he has Meniere's disease.  In the examination, the examiner stated the cause of the Veteran's vertigo is undetermined due to multiple therapies for different conditions of subdural hematoma and carcinoma of head and neck with chemotherapy and radiation.  The examiner continued by stating there is no relation of tinnitus in association to aggravation of Meniere's disease and the Veteran does not have an established diagnosis of Meniere's disease.

The second examination focused on the Veteran's contention that his tinnitus prevents him from seeking employment.  The examiner stated that the Veteran could work in areas with low noise exposure and areas that require low concentration tasks.  The examiner further stated the Veteran could benefit from tinnitus maskers, such as water fountains, white noise maskers, and the use of binaural hearing aids.

The Board finds that the August 2017 VA examination reports are highly probative against the Veteran's claim.  The examiners explained that the Veteran's subjective complaints of vertigo are not Meniere's disease and are not symptoms of his tinnitus.  

The Board finds the Veteran competent to report his feelings of pain and dizziness, and that his reports are credible.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, in this case the Veteran is not competent to attribute those symptoms to his tinnitus.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Determining whether pain and dizziness are manifestations of tinnitus as opposed to other causes such as treatment for cancer requires inquiry into biological processes, pathology, and anatomical relationships.  These are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have the necessary training, skills, or experience to make such a determination.  Because the lay evidence is not competent, the Board finds the medical evidence more probative.  

Here, the evidence does not present an exceptional disability picture that would result in the finding that the Veteran's tinnitus schedular rating is inadequate.  Further, the Veteran's disability picture does not exhibit other related factors, such as marked interference with employment.

Therefore, the Board finds that the schedular rating is adequate and the Veteran is not entitled to an increased rating for tinnitus on an extraschedular basis.  38 C.F.R. § 3.321(b).

Accordingly, the Board finds that the preponderance of the evidence weighs against the claim, and entitlement to a disability evaluation in excess of 10 percent for tinnitus must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990).


ORDER


Entitlement to a disability evaluation in excess of 10 percent for tinnitus, to include on an extraschedular basis, is denied.



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs