Citation Nr: 1800634 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-38 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from September 1958 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT The Veteran is currently assigned the maximum schedular rating for tinnitus, and there is nothing exceptional or unusual about his tinnitus disability, including how it impacts his ordinary activities, such as wearing his hearing aid and in sleeping. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.87 DC 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist A. Duty to Notify VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was not sent a letter prior to the rating decision on appeal. See 38 U.S.C.A. § 5103. However, the information was provided in the VA Form 21526EZ. The actual page with this information is not in the claims file, but the form refers the Veteran to "Please read the . . . Respondent Burden on page 8 before completing this form." It is presumed that this information was attached to the form submitted by the Veteran. See Dent v. McDonald, 27 Vet. App. 362, 383 (2015). Otherwise, a case-specific notice is not required and any other notice defect is deemed not prejudicial. See VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty to notify is satisfied. B. Duty to Assist VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of the claim being decided herein. His service treatment records have been obtained and appear to be complete. Also, all sufficiently identified VA treatment records during the appeal period are of record. He did not identify and authorize VA to obtain any other relevant information. Furthermore, a VA examination was conducted in December 2013, and it is adequate to inform the Board's judgment on those medical matters raised in this appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2). Accordingly, the evidentiary record appears to be complete. For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis The Veteran maintains that a disability rating higher than 10 percent is warranted for his tinnitus. In his October 2015 VA Form 9, the Veteran described ongoing ringing in his ears. He explained that the VA hospital gave him hearing aids for his hearing impairment, but they magnified his tinnitus, which was sometimes so unbearable that he had to remove his hearing aids. The tinnitus was louder at night if he woke up, and he could not go back to sleep without a sleeping pill. According to the Veteran, this had a bad effect on his life over the years. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's disability has been assigned a disability rating under Diagnostic Code (DC) 6260 of 38 C.F.R. § 4.87. The applicable rating schedule is set forth as follows: 6260 Tinnitus, recurrent 10 NOTE (1): A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. NOTE (2): Assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. NOTE (3): Do not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) under this diagnostic code, but evaluate it as part of any underlying condition causing it. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. Evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. Id. Therefore, the disability evaluations contemplate the effects of a disability upon the person's ordinary activity. See id. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). B. Discussion In this case, a higher rating for tinnitus is denied. First, the Veteran is currently assigned the highest possible schedular rating for tinnitus. 38 C.F.R. § 4.87, DC 6260. As such, a higher schedular rating cannot be assigned. Second, referral for extraschedular consideration is not in order because the signs and symptoms of the Veteran's tinnitus are contemplated by the rating schedule. In addition to the complaints noted above, the Veteran's VA medical records show pertinent treatment. In May 2012, he complained of an increase in tinnitus. In July 2013, he reported not wearing his hearing aids because they made his tinnitus worse. He gave similar complaints in August 2013, further noting that he used a wave machine at night, which seemed "to help reduce the tinnitus a little." His tinnitus at that time was classified as moderate to severe. At a December 2013 VA examination, it was found that the Veteran had a constant ringing/buzzing in both ears. In short, the Veteran has symptoms of tinnitus with functional effects involving a difficulty wearing hearing aids, which worsened his tinnitus, and impaired sleeping due to a perception of worsened tinnitus at night. The Board finds that this disability picture is contemplated by the rating schedule. The functional effects of his tinnitus are how the disability impacts him in his ordinary activities, including the effect on his sleep. Even though these effects are not written in the diagnostic code, the rating schedule for tinnitus is written so broadly and inclusively so as to compensate for all associated symptoms and functional effects. See 38 C.F.R. § 4.87; 68 Fed. Reg. 25822 (May 14, 2003). In fact, in Doucette v. Shulkin, the Court made clear that a diagnostic code need not list every word or type of symptom to contemplate a type of functional effect. For instance, problems with hearing sounds in crowds, televisions or telephones are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are the actual effects of the hearing loss in daily life. See 28 Vet. App. 366 (2017). Here, although in the context of a tinnitus extraschedular rating claim, the Doucette decision shows that the symptoms of the Veteran's tinnitus, and their functional effects, are contemplated by the rating schedule for evaluating the disability. Therefore, the rating schedule was purposely designed to compensate for all symptoms of his tinnitus disability. Even if not contemplated, there were no related factors such as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. The Veteran indicated in his October 2015 statement that the functional effects had a "bad effect" on his life over the years. However, he did not indicate that they caused any interference, let alone a marked interference, with his work. There is also no indication of frequent periods of hospitalization. He went to the VA hospital for regular audiological evaluations, plus at least one specialist consultation with an otolaryngologist. However, he was not hospitalized for his symptoms. In conclusion, there is nothing exceptional or unusual about the Veteran's tinnitus disability, including how it impacts his ordinary activities, such as wearing his hearing aid and sleep, because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for consideration of an extraschedular rating for this disability is not warranted. To conclude, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a higher rating at any time during the appeal period, to include referral for extraschedular consideration. See 38 C.F.R. §§ 3.321, 4.7. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is, therefore, denied. ORDER A disability rating in excess of 10 percent for tinnitus is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs