Citation Nr: 18143555 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-32 749 DATE: October 19, 2018 ORDER A rating in excess of 10 percent for tinnitus is denied. REFERRED MATTERS The Veteran has raised claims for vertigo; blood pressure; sleep disorder; and panic disorder. See July 2012 Statement. This statement was received prior to an updated VA requirement that to file a claim for service connection, the claimant should utilize a form prescribed by the VA Secretary. See 38 C.F.R. § 3.155(d) (effective from March 24, 2015). Thus, it is an informal claim for benefits. Therefore, the claims indicated above are referred to Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT The Veteran has a 10 percent disability rating for his bilateral tinnitus, which is the maximum rating authorized under 38 C.F.R. § 4.87, Diagnostic Code 6260. CONCLUSION OF LAW There is no basis for the assignment of any evaluation in excess of 10 percent for bilateral tinnitus as a matter of law. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDING AND CONCLUSION To the extent that the Veteran seeks to reopen a previously denied claim for service connection for hearing loss, he is advised that all claims for benefits must be submitted on required forms. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes. Entitlement a rating in excess of 10 percent for tinnitus. This claim consists of requesting an increased rating for tinnitus, in excess of the current assigned 10 percent. However, because 10 percent is the maximum schedular evaluation allowable for tinnitus this claim will be denied. Under the current version of 38 C.F.R. § 4.87, Diagnostic Code 6260, a single 10 percent rating is to be assigned for recurrent tinnitus. There are additional notes to the rating criteria, cited below. 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 Veteran is requesting an increased initial rating for tinnitus, in excess of the current assigned 10 percent. However, since 10 percent is the maximum disability evaluation which is allowable for tinnitus under the VA rating schedule, this claim will be denied. Generally speaking, the Veteran has maintained that the overall symptomatology affecting his ears is the problem warranting application of a higher rating, identifying the conditions including but not limited to tinnitus (blood pressure, sleep disorder, claimed “panic disorder,” etc.). That notwithstanding, the rating schedule permits evaluation of tinnitus in combination with other disorders where applicable, but not vice versa, insofar as other conditions under Diagnostic Code 6260 itself. This issue of how to rate tinnitus has been addressed by prior applicable caselaw. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the United States Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Then in Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit reversed the Court’s decision in Smith, and affirmed VA’s long-standing interpretation of 38 C.F.R. § 4.25(b) and Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, regardless of whether perceived as unilateral or bilateral. The 10 percent evaluation assigned for the Veteran’s tinnitus is the highest available rating under 38 C.F.R. § 4.87, Diagnostic 6260. The holding of the Federal Circuit in Smith v. Nicholson confirms that 10 percent is the maximum rating under this or any previous versions of the rating schedule. Accordingly, as no higher evaluation is permitted by regulation, the Veteran’s claim for an increased rating must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). C.A. SKOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons