Citation Nr: 18154435
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-55 330
DATE:	November 29, 2018
ORDER
Entitlement to a rating in excess of 10 percent for tinnitus is denied.
FINDING OF FACT
The Veteran’s service-connected tinnitus is assigned a 10 percent evaluation, the maximum evaluation authorized under Diagnostic Code 6260.
CONCLUSION OF LAW
A rating in excess of 10 percent for tinnitus is not warranted.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.7, 4.87, Diagnostic Code 6260 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 2007 to August 2011.
Although the Veteran filed an appeal for the issues of entitlement to service connection for a back issue and arthritis, in a February 2017 rating decision, he was granted service connection for cervical strain with arthritis, lumbar strain with arthritis, bilateral elbow strain, bilateral hip strain, bilateral knee condition, bilateral arm condition and lower extremities radiculopathy.  As these were full grants of the benefits sought, the issues are no longer on appeal before the Board.
Entitlement to a rating in excess of 10 percent for tinnitus
Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 
The Veteran was diagnosed with tinnitus during a February 2014 VA audiological examination.  Service connection for this disability was established in a March 2014 rating decision.  The RO evaluated the Veteran’s tinnitus as 10 percent disabling.  The Veteran asserts that an increased rating in excess of 10 percent for the service-connected tinnitus is warranted.
The Veteran’s current tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260.  Under DC 6260 a 10 percent disability rating is the maximum rating available.  Also, DC 6260 explicitly states it is permissible to assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.  Note 2.  While the Veteran experiences tinnitus in both ears, the Board concludes that the currently assigned 10 percent disability rating is the highest rating assignable under DC 6260.  Although the Veteran may argue that because he has bilateral tinnitus, each ear should be rated separately, there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  The appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 
The Board also finds that no higher schedular evaluation can be assigned pursuant to any other potentially applicable diagnostic code.  There is no evidence that the Veteran suffers from any other disease of the ear for which additional compensation could be awarded.  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.
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Warren, Associate Counsel