Citation Nr: 18141980 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 14-28 887 DATE: October 12, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to increased rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to increased rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to increased rating in excess of 20 percent for left lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran’s service-connected bilateral tinnitus is assigned a 10 percent disability rating, which the maximum is rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for bilateral tinnitus have not been met. 38 C.F.R. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to September 1983. Increased Rating – Tinnitus Throughout the entire initial rating period on appeal, the Veteran has been in receipt of a 10 percent disability rating for bilateral tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, 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 (2012); 38 C.F.R. § 4.87 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a disability rating in excess of 10 percent for bilateral tinnitus must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, 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, 69-70 (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). REASONS FOR REMAND A remand is necessary to provide the Veteran with an updated VA audiology examination to determine the current severity of his bilateral hearing loss. Here, the Veteran’s representative, in its September 2018 informal hearing presentation, indicated that since the Veteran’s last VA audiology examination in July 2014, there is evidence of record that indicates that the Veteran’s bilateral hearing loss has increased in severity. The fact that a VA examination is considered “stale” is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, the medical evidence cited by the representative indicates that the symptoms are worse than when previously examined. Accordingly, a new examination should be afforded to him. See Snuffer, supra. Additionally, regarding the remaining issues on appeal, this case is not yet ready for appellate consideration. A remand is necessary for the RO to readjudicate the claim in light of new pertinent VA evidence, which was added to the claims file without a waiver of Agency of Original Jurisdiction (AOJ) consideration. The RO issued a supplemental statement of the case (SSOC) in March 2016; subsequently however, the Veteran had an April 2018 VA examination with regards to his increased rating claim for lumbar spine disability and associated right and left lower extremity radiculopathy without a subsequent issuance of a supplemental statement of the case. Neither the Veteran nor his representative submitted a waiver of AOJ consideration; therefore, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1304(c) (2017). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since the March 2016 SSOC are associated with the claims file. 2. Then, readjudicate the claims on appeal while ensuring that all evidence added to the file after the last RO adjudication is considered. Attention is called to September 2018 argument in the representative’s written brief presentation. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel