Citation Nr: 18149713 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 17-38 545 DATE: November 14, 2018 ORDER An initial rating in excess of 10 percent for tinnitus, to include on an extraschedular basis, is denied. REMANDED Entitlement to service connection for left knee arthritis as secondary to the service-connected right knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected bilateral tinnitus is assigned a 10 percent disability rating, which is the maximum rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition. 2. The Veteran’s tinnitus is not productive of an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for tinnitus, to include on an extraschedular basis, are not met. 38 C.F.R. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1973 to June 1975, and from February 1977 to September 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the rating decisions dated in September 2015 and April 2016 by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that additional evidence was received after the June 2017 Statements of the Case. However, these records are not relevant to the tinnitus claim on appeal. As such, the Board may proceed with adjudication of the claim. Laws and Analysis for Tinnitus Disability Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). Throughout the entire initial rating period on appeal, the Veteran has been in receipt of a 10 percent disability rating for bilateral tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87 (2017); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating is not available and the Veteran’s claim for a disability rating in excess of 10 percent for bilateral tinnitus must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board had also considered whether an extraschedular rating is warranted for the service-connected tinnitus disability during the relevant period on appeal. During the March 2016 VA audiological examination, the Veteran specifically reported that his tinnitus impacted his ability to sleep due to ringing in his ears. The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. Although Diagnostic Code 6260 does not specifically address sleep impairment as a result of tinnitus, the Board finds that, at no time during the period on appeal, does the evidence show that the Veteran has been hospitalized for his tinnitus. There is also no evidence that the disability resulted in marked interference with the Veteran’s employment. A May 2010 statement from Dr. Clarke indicates that the Veteran last worked in 2000 and had left his work because of a “stroke and his depression.” The remaining evidence of record does not show that the Veteran’s tinnitus caused “marked” interference with his past employment. Thus, the Board finds that the second Thun element is not met and referral is not warranted. REASONS FOR REMAND The Veteran maintains that his left knee disorder is secondary to his service-connected right knee disability. The Veteran was afforded a VA examination in September 2015. A diagnosis of arthritis in the left knee was confirmed. The Board finds that the VA medical examiner did not properly address the theory of aggravation. See Allen v. Brown, 7 Vet. App. 439, 449 (1995) (the Court has suggested that general phrases such as “related to” are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b) (2017). A new medical opinion is required. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records since August 2017 and associate them with the electronic claims file. 2. Then, schedule the Veteran for a VA knee examination. The electronic claims file must be made available to the individual designated to provide the opinion. The examiner is then asked to address the following: (a.) List all diagnoses pertaining to the Veteran’s left knee disability. (b.) For each diagnosis, state whether the Veteran’s left knee disorder is either caused or aggravated by his service-connected right knee disability. (NOTE: The examiner should specifically discuss any leg length discrepancy and/or his altered gait, if shown). (c.) A complete rationale should be provided for the opinions given. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel