Citation Nr: 18142386 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-46 561 DATE: October 15, 2018 ORDER Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. REMANDED Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to a right hip disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to an evaluation in excess of 50 percent for sleep apnea is remanded. Entitlement to an initial evaluation in excess of 30 percent for abnormal involuntary movements, claimed as a neurological disorder, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran is already in receipt of a 10 percent rating, the schedular maximum under Diagnostic Code 6260, for his tinnitus. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from May 1982 to October 1982 and December 1990 to September 1991, including service in Southwest Asia. 1. The claim of entitlement to an evaluation in excess of 10 percent for tinnitus In this case, the Veteran’s tinnitus has been rated 10 percent disabling since March 7, 2014. The present appeal arises from the Veteran’s March 2014 claim of entitlement to service connection for tinnitus, which was granted in an August 2014 rating decision, and assigned a 10 percent evaluation. The regulations pertaining to the evaluation of diseases and injuries of the ears were revised effective June 10, 1999. See 64 Fed. Reg. 25, 202 (1999) (codified at 38 C.F.R. § 4.85 - 4.87 (2002)). The regulation was again revised in May 2003, effective June 13, 2003. See 68 Fed. Reg. 25,822 (2003). The June 13, 2003, revision was undertaken, in part, to clarify existing VA practice that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to Diagnostic Code 6260, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2 (2018). In this case, the Veteran filed his claim in March 2014, which was after the June 2003 change that clarified that only a single 10 percent evaluation is assigned for recurrent tinnitus pursuant to Diagnostic Code 6260, whether the sound is perceived as being in one ear, both ears, or in the head. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing United States Supreme Court precedent, the Federal Circuit explained in Smith that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the United States Court of Appeals for Veterans Claims had erred in not deferring to VA’s interpretation. In light of the foregoing, the Board concludes that Diagnostic Code 6260 precludes separate 10 percent schedular ratings for bilateral tinnitus. As such, the Veteran’s claim for an evaluation greater than 10 percent for his service-connected tinnitus must be denied. As the disposition of this claim is based on interpretation of the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability. 2. Whether new and material evidence has been received to reopen the claim of entitlement to a right hip disability. 3. The claim of entitlement to service connection for an acquired psychiatric disorder is remanded. 4. The claim of entitlement to a compensable evaluation for bilateral hearing loss is remanded. 5. The claim of entitlement to an initial evaluation in excess of 50 percent for sleep apnea is remanded. 6. The claim of entitlement to an initial evaluation in excess of 30 percent for abnormal involuntary movements, claimed as a neurological disorder is remanded. 7. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board cannot make a fully informed decision regarding the remaining issues on appeal as the medical evidence of record is incomplete. Significant portions of the Veteran’s VA treatment records, both preceding and throughout the period on appeal, have not been associated with the claims file. Presently, evidence of record reflects that the Veteran obtained treatment for a number of medical conditions, including those presently on appeal, from his local VA Medical Center. In 2002, the Veteran underwent a left hip replacement at the VA Medical Center as reported in a December 2002 VA examination. In August 2014, another VA examination report noted that the Veteran engaged in regular and continuous treatment for his involuntary movements with a VA neurologist. The Veteran was diagnosed with sleep apnea in March 2013 and obtained a continuous positive airway pressure (CPAP) machine, but no record of this is included in his limited VA treatment records associated with the claims file. The Veteran is also receiving medication to treat anxiety, but there is no indication of when the initial prescription occurred or under what circumstances. VA medical records are in the constructive possession of the agency, and must be obtained if the material could be determinative of the claim. Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 U.S.C. § 5103A. These treatment records could contain relevant information as to the severity of the disabilities on appeal, as well as evidence pertaining to the etiology of the Veteran’s bilateral hip disability as he engages in regular treatment for the condition. Accordingly, all outstanding VA treatment records must be obtained prior to substantive adjudication on the remaining disabilities on appeal. As the Veteran is asserting entitlement to TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. A negative finding should be associated with the record if additional VA treatment records cannot be located. 3. Conduct any and all indicated evidentiary development following receipt of outstanding records. 4. Following completion of the foregoing, review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel