Citation Nr: 18144401 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-37 950 DATE: October 24, 2018 ORDER A disability rating greater than 10 percent for tinnitus is denied. REMANDED Entitlement to a compensable rating for a right ear hearing loss disability is remanded. FINDING OF FACT The current 10 percent disability rating for tinnitus is the maximum schedular rating, whether the sound is perceived in one ear or both ears; there are no unaccounted for symptoms. CONCLUSION OF LAW The claim for a separate schedular 10 percent rating for tinnitus in each ear is without legal merit. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1981 to October 1993. She has not alleged that service-connected disabilities prevent her from obtaining or maintaining substantially gainful employment. No further action regarding unemployability is required. Issues of service connection for insomnia, vertigo, and other secondary factors associated with tinnitus have been raised by the Veteran in August 2016 correspondence, in direct response to an inquiry by the Agency of Original Jurisdiction (AOJ). Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. The AOJ must take steps to provide the required forms, physically or electronically, to the Veteran. Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 1. Tinnitus Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.” Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland’s Illustrated Medical Dictionary 1714 (28th ed. 1994)). The Court has specifically held that tinnitus is a type of disorder capable of lay observation and description. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The RO has evaluated the Veteran’s tinnitus as 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6260, which is the maximum schedular rating. The criteria were revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, 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). Note (1) to Diagnostic Code 6260 provides that a separate rating for tinnitus may be combined with a rating under Diagnostic Codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports a rating under one of those Diagnostic Codes. Note (3) also provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) should not be rated under Diagnostic Code 6260, but should be rated as part of any underlying condition causing the tinnitus. 38 C.F.R. § 4.87 (2017). The Veteran is competent to report symptoms of ringing in both ears. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Historically, service treatment records show complaints of a vibratory tinnitus. During a November 2013 VA examination, the Veteran reported a constant pulsatile tinnitus in the right ear since about 1990. She described the tinnitus as most bothersome for sleeping and for wearing a headset at work. In her August 2016 statement, she stressed rhe secondary psychological impacts of tinnitus, addressed in the referral above, but did not allege any sign or symptom of tinnitus other than the incessant noise. Given that the Veteran is already in receipt of the maximum schedular rating for tinnitus, there is no basis to award an increased rating under Code 6260. As no exceptional circumstance or unaccounted for symptom is raised, application of an extraschedular evaluation under 38 C.F.R. § 3.321 is not appropriate. Assignment of an evaluation in excess of 10 percent for tinnitus is not warranted; the Board makes no finding regarding the appropriateness of separate compensable evaluations for those conditions now alleged as secondary to service-connected tinnitus.   REASONS FOR REMAND 1. Right Ear Hearing Loss Disability Upon perfecting her claim in August 2016, the Veteran contended that her right ear hearing ability has progressively worsened over the years. Her last VA examination was in November 2013. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her right ear hearing loss disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for VA audiology examination to determine the current severity of the Veteran’s service-connected right ear hearing loss disability. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the claim on appeal. If the benefit sought is not granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta