Citation Nr: 18150808 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-32 957 DATE: November 15, 2018 ORDER Entitlement to an initial rating higher than 10 percent for service-connected tinnitus is denied on schedular and extraschedular bases. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected tinnitus is assigned a 10 percent disability rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code (DC) 6260. 2. The Veteran’s tinnitus disability picture is not unusual or exceptional and there are no factors that render the application of the schedular standards impractical. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for service-connected tinnitus are not met on schedular or extraschedular bases. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.21, 4.87, DC 6260 (2017). REASONS AND BASIS FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Navy from April 1964 to March 1967. This matter comes to the Board of Veterans’ Affairs (Board) from a March 2013 rating decision from the Department of Veterans’ Affairs (VA) Regional Office (RO). Initial Rating Claim for Service-Connected Tinnitus The Veteran asserted that an initial rating higher than 10 percent for his service-connected tinnitus is warranted because the evidence demonstrated that his disability is more severe. See July 2016 Substantive Appeal VA Form 9. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran has been in receipt of a 10 percent disability rating for service-connected tinnitus under 38 C.F.R. § 4.87, DC 6260. Under DC 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; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran’s symptoms of constant ringing of the ears is contemplated in the currently assigned 10 percent rating. As the maximum schedular rating for tinnitus under DC 6260 has already been assigned, a higher schedular rating is not available. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Extraschedular Consideration Generally, disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in VA’s Rating Schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran in this case raised the issue of extra-schedular consideration in a July 2016 Substantive Appeal VA Form 9. He asserted that the current severity of his tinnitus warrants extra-schedular consideration. The Veteran’s attorney, in August 2018 correspondence, asserted that a remand of the Veteran’s tinnitus claim is warranted because the RO did not discuss an extra-schedular rating and did not include the relevant regulation in its list of pertinent regulations. In the exceptional case to accord justice where the criteria in VA's Rating Schedule are found to be inadequate, an extra-schedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. An extra-schedular rating is warranted when the case presents such an unusual disability, picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1) (2017). When the Board finds that an extra-schedular rating may be warranted based on the above factors, the Board cannot grant an extra-schedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423 (2009). Rather, the Board must remand the claim to the Agency of Original Jurisdiction for referral to the Director of Compensation and Pension Services. Thun v. Peake, 22 Vet. App. 111 (2008). To determine whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. 38 C.F.R. § 3.321 (b)(1) (2017); Thun v. Peake, 22 Vet. App. 111 (2008). An extra-schedular rating decision made by the Director must contain a statement of reasons or bases, and is reviewable by the Board on a de novo basis. Kuppamala v. McDonald, 24 Vet. App. 447 (2016). Initially, the Board points out that referral for extraschedular consideration is not the default adjudication of increased rating claims, but must be raised by the Veteran, his attorney, and/or the record. Here, while the attorney raised the entitlement to increased rating on extraschedular basis in the July 2016 Form 9, such was not previously raised by the record. In other words, extraschedular consideration was not raised by the Veteran or the record when the RO adjudicated the claim in the March 2013 rating decision or the May 2016 Statement of the Case. Nonetheless, now that the increased rating claim for tinnitus is before the Board for appellate consideration and the issue of extraschedular consideration has been raised, the Board will consider whether referral for extraschedular consideration is warranted. With respect to the first prong of Thun, the evidence does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for tinnitus provides for a disability rating of 10 percent whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). Here, the Veteran’s tinnitus symptoms of constant ringing of both ears are fully contemplated by the schedular rating criteria. The evidence does not show that his tinnitus disability is in any way unusual or exceptional. The Veteran’s assertion that his tinnitus is more severe does not demonstrate that his disability picture is in any way unusual or exceptional. He has not asserted any symptoms or resultant functional impact that he believes is exceptional. The Board finds that this disability picture of constant ringing of both ears is contemplated by the rating schedule. The Veteran has not specifically stated how his tinnitus impacts him in his ordinary activities, if at all. However, the rating schedule for tinnitus is so broadly and inclusively written so as to compensate for all associated symptoms and functional effects. See 38 C.F.R. § 4.87; 68 Fed. Reg. 25822 (May 14, 2003). Indeed, in Doucette v. Shulkin, the Court made clear that a diagnostic code need not list every word or type of symptom to contemplate a type of functional effect. For instance, problems with hearing sounds in crowds, televisions or telephones are not listed in the diagnostic code for hearing loss but are nonetheless contemplated because they are the actual effects of the hearing loss in daily life. See 28 Vet. App. 366 (2017). Here, although in the context of a tinnitus extraschedular rating claim, the Doucette decision shows that the symptoms of the Veteran's tinnitus, and their functional effects, are contemplated by the rating schedule for evaluating the disability. Therefore, the rating schedule was purposely designed to compensate for all symptoms of his tinnitus disability. Even if the Board found that the Veteran’s tinnitus symptoms were not contemplated by the rating criteria, there are still no related factors, such as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. Comparing the Veteran's disability level and the symptomatology of his tinnitus to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. There are no additional, expressly or reasonably raised issues presented on the record. Absent any exceptional factors associated with his tinnitus, the Board finds that referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321 (b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). REASONS FOR REMAND The Veteran’s service-connected bilateral hearing loss is currently assigned a non-compensable rating. The most recent VA compensation examination to assess his hearing loss was conducted in March 2013, more than 5 years ago. The “passage of time” is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007). However, in this case, the Veteran submitted a private August 2017 audiogram from Davis Family Hearing, which appears to reflect some worsening in his hearing loss in terms of the recorded pure tone thresholds. Nevertheless, this audiogram is not adequate for VA purposes because it failed to provide speech recognition scores using the Maryland CNC, as required by the rating criteria. Accordingly, a new VA compensation examination should be afforded to him to determine the current severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Then, provide a VA examination by an appropriate medical professional to determine the current severity of the Veteran's bilateral hearing loss. The entire claims file must be provided to the examiner for review. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should provide an explanation for any conclusions reached. 3. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Counsel