Citation Nr: 21070128 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 10-47 562 DATE: November 23, 2021 ORDER Entitlement to a rating in excess of 10 percent for chronic, atypical ear pain with tinnitus, to include an extraschedular basis under 38 C.F.R. § 3.321(b)(1), is denied. FINDING OF FACT Tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 6260. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.14, 4.87, DC 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to July 1980, from July 1988 to July 1991, and from April 2006 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background this matter was previously before the Board in August 2015, at which time the claim was denied. The Veteran appealed that denial to the Court of Appeals for Veterans' Claims (Court), which, pursuant to a June 2016 Joint Motion for Partial Remand (JMPR) vacated the Board's judgment and returned the matter to the Board. The Board remanded the matter in July 2016, and again denied the claim in July 2017. The Veteran again appealed the matter to the Court, which, again pursuant to a JMPR, vacated the Board's decision, and returned the matter to the Board, which, in January 2019, remanded the matter to the Director of Compensation and Pension for extraschedular consideration. The Director found an extraschedular evaluation unwarranted. The Board remanded this matter in February 2021 for additional development and the appeal has since been returned to the Board for further appellate consideration. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record an address procedural argument when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). An August 2021 correspondence documents a formal finding that the relevant medical records from Madigan Army Medical Center, cannot be located and therefore are unavailable for review. The RO determined further efforts to obtain these records would be futile. Thus, the requested development has been accomplished and the matter has returned to the Board for further appellate consideration. The Board also finds that there has been compliance with the prior February 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a rating in excess of 10 percent for chronic, atypical ear pain with tinnitus, to include an extraschedular basis under 38 C.F.R. § 3.321(b)(1). The Veteran contends the severity of his service-connected chronic, atypical ear pain with tinnitus warrants a rating in excess of the currently assigned 10 percent. The Veteran's tinnitus is currently rated 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 9905 for tinnitus. Under 38 C.F.R. § 4.87, Code 6260, there is no provision for assignment of a rating in excess of 10 percent for tinnitus, including no rating allowing separate 10 percent ratings for tinnitus of each ear. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit concluded that 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Code 6260, limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Code 6260. The Veteran is also separately service-connected for "nonspecific headaches associated with atypical ear pain." To compensate the Veteran twice for his atypical ear pain symptom (otalgia) would constitute impermissible pyramiding. 38 C.F.R. § 4.14. As the Veteran's service-connected tinnitus was assigned the maximum schedular rating available for the disorder, there is no legal basis upon which to award a higher schedular evaluation for tinnitus (or a separate evaluation for each ear), the appeal must be denied. 38 C.F.R. § 4.87, DC 6260. With respect to an extraschedular rating, the evidence of record shows that a rating in excess of 10 percent is not warranted by the facts of this case. Specifically, in a May 2021 Disability Benefits Questionnaire (DBQ) for hearing loss and tinnitus, the examiner found that the Veteran reported that the sound of his tinnitus "is annoying and distracting," and that the Veteran compensates by keeping his television and music on. The Board finds that these symptoms have not been shown to rise to a level of severity commensurate with a rating in excess of 10 percent. The Board has not overlooked the Veteran's statements about the frequency, severity, and duration of his tinnitus. He is competent to report on factual matters of which he had firsthand knowledge, and the Board finds that his reports concerning his tinnitus symptoms have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, these statements do not establish that a higher rating is warranted because they do not demonstrate that the Veteran is experiencing additional symptoms not considered by the applicable diagnostic code in the VA Rating Schedule. The Board is sympathetic to the Veteran's reports and understands that his tinnitus has a significant effect on his daily life. However, these symptoms more nearly approximate the currently assigned 10 percent evaluation and do not warrant an increase in the rating at this time. The Board also notes that this decision does not leave the Veteran without recourse. If the disabilities and the impairments they cause should worsen in the future, the Veteran is free to file claims for increased disability ratings at that time. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.