Citation Nr: 18143714 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-14 406 DATE: October 23, 2018 ORDER Entitlement to an initial evaluation in excess of 10 percent for bilateral tinnitus is denied. REMANDED Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s service connected bilateral tinnitus is currently evaluated at 10 percent disabling, the maximum evaluation authorized. CONCLUSION OF LAW There is no basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code 6260 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to May 1976. He served in the United States Army. A January 2018 Board hearing was held and the transcript has been associated with the record. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Entitlement to an initial evaluation in excess of 10 percent for tinnitus The Veteran alleges that his bilateral tinnitus is worse than what is encompassed by a 10 percent evaluation. At a January 2018 Board hearing, testified that he always had the ringing in his ears, along with ear pain. The Veteran further testified that recently before Thanksgiving, he experienced dizziness, could not stand up, and felt like he was going to faint. The Veteran also testified that he believed it had definitely gotten worse over the past few years. Review of the claims file shows that the Veteran was granted service connection for tinnitus, at 10 percent disabling, in a March 2013 rating decision. The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Diagnostic Code 6260 provides for a maximum 10 percent evaluation for recurrent tinnitus regardless of whether the tinnitus is perceived in one ear or both. 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that VA's interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether unilateral or bilateral was not plainly erroneous or inconsistent with the regulations). In light of the foregoing, although the Veteran is competent to offer testimony regarding his tinnitus symptoms, the Board finds that there is no basis upon which to award an increase schedular evaluation as he is already receiving the maximum award. The Board also finds that because there is a specific diagnostic code to evaluate tinnitus, consideration of other diagnostic codes for evaluating the disability is not appropriate. See 38 C.F.R. § 4.20. Accordingly, the Board finds that the rating assigned is appropriate and there is no basis for higher schedular ratings. The Board has considered whether referral for extraschedular consideration is indicated by the record. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2017). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. 111. If not, the second step is to determine whether the Veteran’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. Although the Veteran has provided lay statements regarding additional symptoms such as ear pain and dizziness, he did not allege, and the other evidence of record does not suggest, that these symptoms caused marked interference with employment and frequent periods of hospitalizations. Accordingly, referral is not required. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. Regarding the Veteran’s claim for an initial compensable rating for bilateral hearing loss, remand is required for a current examination. When a claimant asserts, or the evidence indicates, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). At a January 2018 Board hearing the Veteran reported that his hearing loss has worsened. Specifically, the Veteran testified that his hearing loss had increased and that he could not hear anymore. The Veteran reported that when he is having a conversation he is mostly lip reading. The Veteran also testified that he tries to stand in a stationary area to have conversations with people, otherwise is he does not know what they are saying. The Veteran also stated that he turns up the television very loud and that he wears hearing aids. VA examinations were obtained in November 2012 and February 2016. Private audiograms were submitted in March 2016, August 2016, and January 2018. Although there are numerous audiological examinations of record, the most recent VA examination was conducted in February 2016. Because the Veteran has alleged at the January 2018 Board hearing that his hearing loss has worsened, and there is evidence from the March 2016 private audiogram to show that there may have been a worsening of the Veteran’s bilateral hearing loss, a new VA examination is warranted to determine the current severity of the Veteran’s service-connected hearing loss.   2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran alleges that his hearing loss impacts ordinary conditions of his daily life, including his ability to work. The Veteran reported that he is unable to work because of this physical impairment. The Board finds the issue of entitlement to a TDIU is inextricably intertwined with the increased rating issue remanded herein. Therefore, although the Board regrets the additional delay, the issue of entitlement to TDIU must also be remanded to the AOJ. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the relevant Disability Benefits Questionnaire. Additionally, the examiner must address the functional effects of hearing loss and the impacts, if any, on the Veteran’s ability to obtain and maintain gainful employment. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel