Citation Nr: 1804818 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-03 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 10 percent for bilateral tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United Sates Army from March 1984 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied entitlement to an increased disability rating for the Veteran's service-connected tinnitus. The Board notes that in his substantive appeal, the Veteran requested a hearing. Accordingly, the Veteran was scheduled for a Board hearing in May 2017. Prior to the scheduled hearing, in May 2017, the Veteran submitted a request to reschedule the hearing. The hearing was then rescheduled for August 2017, which was cancelled by the Veteran. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claim currently on appeal. The Board notes that in his October 2012 notice of disagreement (NOD), the Veteran disagreed with the November 2011 rating decision pertaining to both claims for tinnitus and hearing loss; however, in his January 2014 substantive appeal, the Veteran only appealed the issue for tinnitus. Thus, the claim for hearing loss is not presently before the Board. The Board further notes that in August 2017, VA received the Veteran's request to reopen his claim for a compensable evaluation for his service-connected hearing loss. In response to the request to reopen the claim, in an August 2017 letter, the RO indicated that the claim for hearing loss was already on appeal. As noted above, the Veteran's January 2014 substantive appeal only included an appeal for tinnitus; therefore, the Board does not have jurisdiction over the claim for hearing loss. As such, this claim must be referred back to the AOJ for appropriate action. The issues of entitlement to a compensable evaluation for hearing loss and service connection for speech impediment / dizziness / sleep disorder / concentration problems, to include as secondary to service-connected tinnitus and hearing loss, have been raised by the record in an August 2017 request to reopen a claim and in a January 2018 application for VA benefits, respectively; however, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary prior to final adjudication of the Veteran's claim on appeal. In the October 2012 NOD, the Veteran indicated that the increased severity of his tinnitus had an effect on his ability to discern spoken words clearly, and caused occasional dizziness, sleep problems, diminished ability to concentrate, and other neurological exacerbations. See October 2012 Notice of Disagreement. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for that disability. 38 C.F.R. § 4.87, Diagnostic Code 6260. Extraschedular consideration is provided for under 38 C.F.R. § 3.321 (b)(1) when the record presents such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." Arguably, the schedular rating for tinnitus is inadequate, as the current rating under Diagnostic Code 6260 does not contemplate the impairment caused by the Veteran's difficulty discerning spoken words clearly, as well as his occasional dizziness, sleep problems, diminished ability to concentrate, and other neurological exacerbations. Therefore, the Board finds that this matter regarding tinnitus should be referred for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Refer the issue of entitlement to a disability rating in excess of 10 percent for bilateral tinnitus to the Director of Compensation for consideration of extraschedular evaluations. 3. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).