Citation Nr: A20007318 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191027-40037 DATE: April 30, 2020 ORDER Entitlement to a rating in excess of 10 percent for service-connected tinnitus is denied. FINDING OF FACT Applicable laws and regulations do not permit a rating in excess of 10 percent for tinnitus, and the Veteran’s tinnitus manifests as ringing in his ears, which is contemplated in the schedular rating criteria. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1984 to November 2011. This appeal comes to the Board of Veterans’ Appeals (Board) under the Appeals Modernization Act (AMA) review system. 84 Fed. Reg. 138 (Jan. 18, 2019). In this regard, the Veteran sought an increased rating for service-connected tinnitus in an August 2019 application. A Department of Veterans Affairs (VA) Regional Office (RO or AOJ) denied the Veteran’s claim for an increased rating for service-connected tinnitus in a September 2019 rating decision. The Veteran was provided notice of that rating decision on September 12, 2019. In October 2019, the Veteran submitted his VA Form 10182 Decision Review Request: Board Appeal (AMA Notice of Disagreement) to appeal the issue of entitlement to a rating in excess of 10 percent for service-connected tinnitus to the Board, selecting direct review by a Veterans Law Judge (VLJ). Because the Veteran requested direct review by a VLJ without submission of additional evidence and without a Board hearing, the Board’s decision is based on a review of the evidence of record at the time of the September 2019 rating decision. 38 C.F.R. § 20.301. In this regard, evidence was added to the claims file during a period of time when new evidence was not allowed. The Board may not consider this evidence. See 38 C.F.R. § 20.300. However, the Veteran may file a Supplemental Claim and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a Rating in Excess of 10 Percent for Service-Connected Tinnitus Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Tinnitus is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Code 6260 (recurrent tinnitus). The Veteran contends that there are many levels of his discomfort and these levels should be equated to disability percentages. He asserts that the ringing in his ears used to be more predominate in his left ear, but now the ringing in both his left and right ears is so overwhelming it is almost debilitating. See August and October 2019 statements. He argues the law should be changed to increase the disability percentage based upon the level of discomfort associated with one’s tinnitus. See October 2019 VA Form 10182. Diagnostic Code 6260 was revised, effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for “recurrent” tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Code 6260, Note (2). Note (1) to Diagnostic Code 6260 provides that a separate rating for tinnitus may be combined with a rating under Diagnostic Codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports a rating under one of those Diagnostic Codes. Note (3) also provides that objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathologic) should not be rated under Diagnostic Code 6260, but should be rated as part of any underlying condition causing the tinnitus. 38 C.F.R. § 4.87. It is now well-settled that Diagnostic Code 6260 limits a Veteran to a single 10 percent maximum rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Indeed, the United States Court of Appeals for the Federal Circuit has held that the maximum schedular rating available for tinnitus is 10 percent. Smith v. Nicholson, 451 F.3d 1344, 1350 (Fed. Cir. 2006) (holding that VA’s interpretation of the maximum rating was neither plainly erroneous nor inconsistent with the regulations, and, thus, VA was entitled to apply its own construction). The service-connected tinnitus is already evaluated as 10 percent disabling. Service treatment records indicate the Veteran reported a new onset of ringing/buzzing in his ears following an ear infection. See January 2019 record. In a February 2019 treatment record, he reported constant bilateral tinnitus concurrent with a sinus infection. He reported the sinus infection had resolved, but the tinnitus symptoms remained. His tinnitus symptoms were described as severe leading to disturbed sleep and interference with an ability to carry out normal daily activities. The Veteran denied otalgia, otorrhea, aural fullness, dizziness/imbalance, history of otitis media and/or ear surgery. In a March 2019 treatment record, the Veteran denied ear infections, ear surgeries, vertigo, ototoxic medications and described his tinnitus symptoms as a constant ringing in both ears. Hearing aids were recommended. In a July 2019 treatment record, the Veteran reported ringing in his ears “all the time.” In an earlier July 2019 record, he denied headaches and dizziness. The Veteran was afforded an audiological examination in September 2019 to assess the severity of the Veteran’s service-connected tinnitus. The Veteran reported that his tinnitus is constant and occurs every single day, at all times of the day. He reported that his tinnitus wakes him up at night and keeps him from falling to sleep. He explained that his tinnitus is so loud that other people should be able to hear it, too. He reported that his tinnitus makes him feel stressed, irritable at home and at work and that it affects his ability to concentrate at work thus affecting his productivity. The record indicates that the Veteran’s tinnitus manifests as ringing in his ears. Thus, there is no legal basis upon which to award an increased rating for tinnitus in each ear on a schedular basis, and the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no doubt to resolve. Consequently, an increased rating for tinnitus is not warranted. In a March 2020 Appellate Brief, the Veteran’s representative argues that the Veteran’s pain and discomfort is not contemplated in the diagnostic criteria for evaluating tinnitus. The assertion was made that an extraschedular rating is warranted. The Board does not have authority to grant an extraschedular rating in the first instance but must determine whether the claim should be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. A referral is not warranted here. The evidence of record does not show such an exceptional disability picture that the available schedular evaluation for tinnitus is inadequate. See 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). According to the September 2019 VA audiological examination, the Veteran reported subjective ringing in his ears. January 2019, February 2019, March 2019 and July 2019 VA treatment records document the Veteran’s reports of tinnitus without noting anything other than ringing in his ears. The Veteran has not reported any unusual symptomatology associated with his tinnitus. Indeed, with respect to his report of anxiety, stress, and sleep impairment related to his tinnitus, such symptoms are already a factor in the rating assigned to his service connected posttraumatic stress disorder (PTSD). His difficulty sleeping could also be attributed to his service connect sleep apnea. Because the rating schedule contemplates the Veteran’s ringing in the ear, and because he is already in receipt of compensation for these other symptoms, referral of the claim for extraschedular consideration is not required. See 38 C.F.R. § 3.321. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.