Citation Nr: 1805255 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-05 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 2. Entitlement to an initial rating in excess of 30 percent for PTSD prior to March 14, 2016 and in excess of 50 percent thereafter. 3. Entitlement to service connection for tremors. 4. Entitlement to an initial compensable rating for hearing loss prior to March 14, 2016 and in excess of 10 percent thereafter. 5. Entitlement to a rating in excess of 20 percent for residuals of prostate cancer. REPRESENTATION Appellant represented by: Chisholm, Chisholm, and Kilpatrick ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from May 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board acknowledges that the issue of entitlement to an earlier effective date for a TDIU has been perfected, but not yet certified to the Board. The Board's review of the claims file reveals that the agency of original jurisdiction is still taking action on this issue. As such, the Board will not accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. The issues of entitlement to a higher initial rating for PTSD, entitlement to service connection for tremors, entitlement to an initial compensable rating for hearing loss, and entitlement to an increased rating for residuals of prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular evaluation higher than the current 10 percent for the Veteran's service-connected tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating for Tinnitus The Veteran seeks a higher rating for tinnitus. In Smith v. Nicholson, the Federal Circuit held that the maximum schedular rating available for tinnitus is 10 percent. Currently, the Veteran's tinnitus is already evaluated as 10 percent disabling. Thus, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis, and the Veteran's appeal must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). An extraschedular rating may be provided in exceptional cases. See 38 C.F.R. § 3.321. However, the Board does not find that his tinnitus represents an exceptional or unusual disability pattern. Id. A TDIU has been awarded, which encompasses all employment problems due to service-connected disabilities. His tinnitus has not resulted in hospitalizations. As his tinnitus is not unusual or exceptional, the Board finds referral for an extraschedular rating is not appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial rating in excess of 10 percent for tinnitus is denied. REMAND It appears that treatment records relevant to the remaining claims are outstanding. In May 2012, the Veteran reported that he was being treated at the Clearwater Vet Center and the New Port Richey Outpatient Clinic. In July 2013, he reported that he had received treatment at the VA Medical Center in Bay Pines, Florida. The treatment records should be obtained and associated with the claims file. VA outpatient medical records reflect that the Veteran has been diagnosed with essential tremor. Diagnoses of alcohol abuse are also noted in his VA medical records. However, the evidence of record does not indicate whether the essential tremor is related to the Veteran's service-connected PTSD and/or alcohol use. A VA examination is necessary to ascertain whether a tremor is caused or aggravated by service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding treatment records from the Clearwater Vet Center, New Port Richey Outpatient Clinic, and the Bay Pines VA Medical Center. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any disorder manifested by tremors. The claims file must be reviewed in conjunction with the examination. The examiner should opine whether it is at least as likely as not (50 percent probability) that any currently diagnosed disorder manifested by tremors was caused or aggravated by the service-connected PTSD, to include the use of alcohol due to service-connected PTSD. The examiner should provide a complete rationale for all opinions expressed. If an opinion cannot be provided without resorting to speculation, the examiner should explain why it is not possible to provide an opinion. 3. Then, readjudicate the claims. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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. §§ 5109B, 7112 (2012). ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs