Citation Nr: 18144161 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 14-05 912 DATE: October 24, 2018 ORDER A rating in excess of 10 percent for tinnitus is denied. A rating in excess of 30 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for breathing problems is remanded. Entitlement to service connection for type two diabetes mellitus, to include as due to exposure to herbicide agents is remanded. VETERAN’S CONTENTIONS The Veteran is seeking increased ratings for his service-connected bilateral hearing loss and tinnitus. He contends that he has constant ringing in his ears. The Veteran is also seeking service-connection for breathing problems and type two diabetes mellitus. He contends that his breathing problems were caused by inhaling firearms discharge, smoke, and dust during his service with the Georgia Army National Guard. He contends that his diabetes either had its onset during his National Guard service or was caused by exposure to herbicide agents at Fort Gordon, Georgia during his active duty service with the US Army in the 1960s. FINDINGS OF FACT 1. The Veteran has been in receipt of the maximum schedular rating for tinnitus throughout the claim period. 2. Throughout the claim period, the Veteran’s bilateral hearing loss has been manifested by impairment of auditory acuity that is no worse than Level VII and Level V, in the right and left ears, respectively. CONCLUSIONS OF LAW 1. There is no legal basis for a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 2. The criteria for a rating in excess of 30 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 1964 to April 1966. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. 1. Entitlement to an Increased Rating for Tinnitus The Veteran’s tinnitus is rated under Diagnostic Code 6260, which permits the assignment of a single rating with a maximum of 10 percent, regardless of whether tinnitus is heard in one ear, both ears, or in the head. 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344, 1349–50 (Fed. Cir. 2006) (affirming VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus). The Veteran’s tinnitus has been assigned the maximum schedular rating throughout the claim period, and he has not alleged any symptoms not contemplated by the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, since there is no legal basis for a rating in excess of 10 percent, the Veteran’s claim for an increased rating must be denied. 2. Entitlement to an Increased Rating for Bilateral Hearing Loss Loss of hearing acuity is evaluated under 38 C.F.R. § 4.85, which establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s bilateral hearing loss is currently rated as 30 percent disabling throughout the claim period. The Veteran has been afforded two VA examinations on his hearing loss claim, in April and October 2010. An audiogram produced at the April 2010 VA examination indicated puretone thresholds of 55, 55, 60, and 75 decibels in the right ear and 45, 65, 70, and 80 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz (“specified frequencies”) respectively, resulting in average puretone thresholds of 61.25 and 65 decibels in the right and left ears, respectively. A speech audiometry test revealed speech recognition ability of 78 percent and 82 percent in the right and left ears, respectively. Applying these results to Table VI of 38 C.F.R. § 4.85 yields findings of Level IV hearing loss in both ears. Where hearing loss is at Level IV in both ears, a 20 percent rating is assigned under Table VII. An audiogram produced at the October 2010 VA examination indicated puretone thresholds of 85, 80, 75, and 85 decibels in the right ear and 40, 55, 60, and 70 decibels in the left ear at the specified frequencies, resulting in average puretone thresholds of 81.25 and 56.25 in the right and left ears, respectively. A speech audiometry test revealed speech recognition ability of 80 percent and 74 percent in the right and left ears, respectively. When the puretone threshold at each of the specified frequencies is 55 decibels or more, as for the Veteran’s right ear on the October 2010 audiogram, VA determines the level of hearing loss using either Table VI or Table VIa, whichever results in the higher level. Here, Table VIa yields the higher level for the Veteran’s right ear: Level VII. Table VI yields a finding of level V hearing loss for the left ear. Where hearing loss is at level VII in the worse ear and Level V in the better ear, a 30 percent rating is assigned under Table VII. Although the Veteran has submitted statements noting complaints of constant ringing in his ears, he has not alleged that his hearing loss has worsened since the time of the April and October 2010 VA examinations. Further, as indicated in the previous section, ringing of the ears is a symptom contemplated by the schedular rating criteria for tinnitus, and the Veteran has not alleged any symptoms not contemplated by schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the criteria for a rating in excess of 30 percent for bilateral hearing loss are not met, and accordingly an increased rating is not warranted. REASONS FOR REMAND As noted in the Veteran’s contentions above, the Veteran asserts that his breathing problems and diabetes both either result from or had their onset during his service with the Georgia Army National Guard from April 1976 to April 1995. Service in a state Army National Guard normally does not result in eligibility for veterans’ benefits unless the Veteran was ordered into Federal service by the President of the United States. See 10 U.S.C. § 12401; Allen v. Nicholson, 21 Vet. App. 54, 58 (2007). However, in his substantive appeal to the Board, the Veteran also suggested that his diabetes may be related to exposure to herbicide agents at Fort Gordon, Georgia, during the 1960s. The Veteran’s DD-214 reflects federal active duty service in the Army from May 1964 to April 1966, but personnel files currently of record do not indicate where the Veteran was stationed during this time. See, e.g., August 1990 Record of Assignments. Therefore, a remand is necessary to seek records reflecting the Veteran’s assignments during his active duty service. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the Georgia Army National Guard. Verify the dates and locations of all federal active duty assignments the Veteran served during the 1960s. Document all requests for information as well as all responses in the claims file. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel