Citation Nr: 19106977 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-32 502 DATE: January 29, 2019 ORDER Entitlement to an initial schedular evaluation in excess of 10 percent for service-connected tinnitus is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus on an extraschedular basis is remanded. Entitlement to a compensable initial evaluation for service-connected bilateral hearing loss is remanded. FINDING OF FACT The Veteran is in receipt of a 10 percent initial evaluation for tinnitus, which is the maximum schedular rating for that disability. CONCLUSION OF LAW The schedular criteria for an initial evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1972 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that established service connection for bilateral hearing loss and tinnitus; noncompensable (zero percent) and 10 percent initial evaluations were assigned, respectively, effective from September 24, 2015. The Veteran expressed disagreement with the assigned initial evaluations, and the present appeal ensued. Characterization of issues on appeal In his April 2016 Notice of Disagreement, the Veteran asserted that symptoms associated with his service-connected tinnitus keep him awake at night. As the rating schedule for tinnitus does not contemplate this functional impairment, the Board concludes that the issue seeking an increased initial evaluation for service-connected tinnitus should be expanded to include extraschedular consideration. As fully discussed below, while a preponderance of the evidence is against a higher initial evaluation for tinnitus on a scheduler basis, the evidence supports the remand of the issue of entitlement to a higher rating on an extraschedular basis for further procedural and evidentiary development. As such, this issue has been bifurcated as shown on the title page. 1. Entitlement to an initial schedular evaluation in excess of 10 percent for service-connected tinnitus [Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran and his representative have asserted that the Veteran is entitled to an initial rating in excess of 10 percent for his service-connected tinnitus, which is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. This is the maximum schedular rating assignable for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Although the Veteran argues that he is entitled to an initial evaluation in excess of 10 percent for tinnitus, Diagnostic Code 6260 precludes an evaluation in excess of a single 10 percent schedular rating for tinnitus. Under these circumstances, the disposition of this claim is based on the law, and not the facts of this case. Therefore, the claim for an increased rating must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REMANDED ISSUES 1. Entitlement to an compensable initial evaluation for service-connected bilateral hearing loss is remanded. The Veteran was most recently afforded a VA audiological examination to determine the severity and functional impairment stemming from his service-connected bilateral hearing loss in February 2016 – nearly three years ago. In his June 2017 substantive appeal, the Veteran asserted that his hearing acuity has decreased since the February 2016 VA examination. As such, the Board concludes that this issue must be remanded to provide the Veteran a contemporaneous VA examination to determine the current severity and functional impairment associated with this disability. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus on an extraschedular basis is remanded. Based on the Veteran’s assertions that his service-connected tinnitus prevents him from sleeping, referral of the issue for an extraschedular rating is in order, as the schedular rating arguably does not adequately contemplate his disability picture and a 10 percent disability rating for this tinnitus has been argued as inadequate. Therefore, the issue is remanded so that they Agency of Original Jurisdiction (AOJ) may forward the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to address whether justice requires assignment of an extraschedular rating for the Veteran’s service-connected tinnitus. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associated with the file all records from the VA Medical Center (VAMC) in Oklahoma, City, Oklahoma, and associated facilities dated after May 9, 2016. 2. The AOJ must contact the Veteran and request that he complete a release for any private treatment records that are outstanding and pertinent to the disabilities subject to this remand. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for a VA audiological examination to evaluate his service-connected bilateral hearing loss and symptoms associated with his service-connected tinnitus. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted, to include audiometric testing with recorded decibel losses and speech recognition scores for each ear. The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected bilateral hearing loss and tinnitus, to include the functional impairment of the Veteran's daily life and activities caused by this disability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must refer the claim of entitlement to an extraschedular rating for tinnitus to the Director of Compensation Service for a determination as to whether the Veteran is entitled to such a rating under 38 C.F.R. § 3.321. The Director must specifically determine whether, to accord justice, the Veteran’s disability picture requires assigning an extraschedular rating to commensurate with the average earning impairment that is due exclusively to his service-connected tinnitus disability. In doing so, the Director must provide an adequate statement for the reasons and bases for its determination. The Director must analyze the probative value of the evidence, and account for evidence it finds persuasive or unpersuasive, and provide the reasoning for its rejection of any material evidence favorable to the Veteran which would favor the assignment of an extraschedular rating. 5. Thereafter, and after undertaking any additional development deemed necessary, the AOJ must readjudicate the issues on appeal. If any benefit sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should then be returned to the Board for further appellate review, if otherwise in order. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel