Citation Nr: 18123716 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 14-31 793A DATE: August 3, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s tinnitus is evaluated at the maximum schedular rating available for that disorder. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.87, DC 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to February 1980 and February 1980 to June 1985. These matters are on appeal from a November 2013 rating decision. Higher Initial Disability Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran asserts that his service-connected tinnitus warrants a higher initial rating. His tinnitus is currently rated as 10 percent disabling under DC 6260. This diagnostic code allows for a single 10 percent rating, the maximum schedular rating available, for tinnitus regardless of whether it is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the maximum schedular rating under DC 6260 has been reached, the Veteran’s claim for an initial rating in excess of 10 percent for his service-connected tinnitus on a schedular basis must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered whether the schedular evaluation is inadequate, thus requiring referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2017). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). Here, the schedular evaluation of the Veteran’s tinnitus is adequate. His tinnitus has been assigned the maximum rating under the schedular rating criteria. While the Board acknowledges the Veteran’s report that his tinnitus is extremely bothersome, the only symptom of his tinnitus is a constant ringing in his ears that has remained stable over time, which is contemplated by the rating criteria. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA audiological examination in November 2013. The VA examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss is related to service. In support of her opinion, the VA examiner indicated that the Veteran’s August 1976 entrance examination confirms pre-existing hearing loss, as the Veteran’s pure tone thresholds at 4000Hz were 40dB in both the right and left ears. The VA examiner stated that the Veteran’s pre-existing hearing loss was not aggravated beyond normal progression in military service, as his January 1985 audiogram did not exhibit a significant shift in hearing loss from his August 1976 entrance examination. Upon review of the Veteran’s service treatment records (STRs), it appears that the Veteran’s June 1985 separation examination is absent from the record. While the November 2013 VA examiner cited to the Veteran’s January 1985 audiogram as his separation examination, review of this audiogram clearly indicates the purpose of the examination was for extension rather than separation. The Veteran’s June 1985 separation examination is relevant because it relates to whether the Veteran’s pre-existing hearing loss noted upon entrance in April 1976 was aggravated beyond normal progression in service. On remand, all outstanding STRs, to include the Veteran’s June 1985 separation examination, should be obtained. Additionally, as the November 2013 VA examiner relied on an incomplete claims file when rendering her opinion as to service connection for bilateral hearing loss, the Board finds that a remand is necessary to obtain a new medical opinion. The matter is REMANDED for the following action: 1. Obtain all outstanding STRs for the Veteran’s active service, specifically, his June 1985 separation examination. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s claims file. 2. Thereafter, send the Veteran’s claims file to the VA examiner who provided the November 2013 opinion, if available, otherwise, to an appropriate medical professional to obtain an addendum opinion regarding the etiology of the Veteran’s bilateral hearing loss. The Veteran’s electronic claims file must be made available to the designated professional for review. The examiner must provide a rationale for all opinions provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Following the review of the claims file, the examiner is then requested to respond to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral hearing loss is etiologically related to service? b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s pre-existing hearing loss noted on the August 1976 entrance examination was aggravated during service (permanently increased in severity beyond natural progression therein)? In rendering the requested opinions, the examiner should consider the August 1977, February 1980, May 1984, July 1984, and January 1985 audiograms of record, as well as the Veteran’s separation examination. If the requested opinions cannot be provided without a new examination, one should be scheduled. (Continued on the next page)   3. After completing all indicated development, the AOJ should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel