Citation Nr: 21077467 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-40 030 DATE: December 29, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. FINDING OF FACT The Veteran is assigned the maximum schedular rating for tinnitus and the symptoms of the Veteran's tinnitus are contemplated by the schedular rating criteria. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected tinnitus are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in April 2020 for additional development and is now back before the Board for adjudication. The RO issued a January 2021 supplemental statement of the case (SSOC). The Veteran filed a VA Form 10182 Notice of Disagreement, a VA Form 20-0995 Supplemental Claim Application, and a VA Form 20-0996 Request Higher-Level Review, on February 15, 2021, all listing the tinnitus issue. Although each was received in a time frame to allow the Veteran to opt his appeal out of the legacy appeal system into the modernized appeals system, concurrent elections of multiple modernized appeals options are prohibited. 38 C.F.R. § 3.2500(h). The RO responded to the Veteran with a February 16, 2021, letter asking him to clarify which application he intended to control. The Veteran has not to date responded. As a result, the Board concludes that the Veteran did not validly opt his appeal into the modernized appeals system and will adjudicate this appeal in the legacy appeals system. 38 C.F.R. § 19.2. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. The Veteran is currently rated at 10 percent for his service-connected tinnitus and hyperacusis. He claims that his tinnitus is more severe than it is rated. The Veteran's tinnitus is assigned a 10 percent rating which is the maximum schedular rating. The Diagnostic Code was revised effective June 13, 2003, to codify existing VA practice of assigning a single 10 percent rating 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, Diagnostic Code 6260, Note (2). As the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available pursuant to Diagnostic Code 6260 there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran contends that he is entitled to an extraschedular rating for his tinnitus disorder under 38 C.F.R. § 3.321(b)(1). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b)(1) is a three-element inquiry. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. 38 C.F.R. § 3.321(b)(1). After such a referral, the Board is required to revisit the first two elements, those of comparison of the claimant's level of disability and symptomatology and the exhibition of other related factors. Anderson, 22 Vet. App. at 429. The Board referred this claim for consideration of an extraschedular rating in an April 2020 remand. The Director of Compensation Service issued a January 2021 decision declining to award such a rating. In this April 2018 Notice of Disagreement, the Veteran reported that his tinnitus severely affects his life, and that the ringing in his ear was much louder, that he was constantly on guard around loud noises, and that he had to limit himself around large family gatherings. In a May 2018 Report of General Information form, the Veteran stated that his tinnitus had dramatically changed his life, he reported that he could longer be around any noises, for example he reported that could not mow the lawn or be around plates rubbing together. The Veteran also reported that any noise made the tinnitus worse, such as a garbage truck going by or a plane flying overhead, the ringing was overwhelming, and that he needed to cover his ears. In his August 2018 substantive appeal, the Veteran indicated that his tinnitus was very annoying and that he had a hard time with everyday activities. He stated that the VA hearing tests did not take into account his continued increase in ear ringing, which was having an adverse effect on his daily activities. In a March 2020 written presentation, the Veteran's representative indicated that the Veteran was "adamant" that his tinnitus and hyperacusis greatly impacted his everyday life. The Veteran reported that he was constantly on guard around loud noises, had to limit himself around loud family gatherings, and could not go on vacations. There was an increase in the ringing in his ears which was having an adverse effect on his daily activities. The representative also argued that a 2018 VA examination was inadequate and did not appear to take into account the symptoms reported by the Veteran. VA treatment records show that the Veteran repeatedly sought treatment for his tinnitus symptoms, and in December 2018, the Veteran's hearing aids were adjusted to help control his symptoms. DC 6260, however, only allows one rating for subjective tinnitus regardless of whether the sound is perceived in one ear, both ears, or in the head. See DC 6260, Notes 2-3. The Veteran has not argued that his tinnitus causes objective symptoms or that there is another underlying condition causing the reported symptoms. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's tinnitus. The schedular criteria and accompanying notes make it clear that they encompass all of the subjective criteria reported by the Veteran. In the absence of evidence that the schedular rating criteria is inadequate to rate the disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for a second time. See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board also finds the Veteran's disability picture does not exhibit other related factors of marked interference with employment or frequent periods of hospitalization. The Veteran reports that he works as a contractor and that he cannot be around power tools. Extraschedular ratings require "marked interference with employment." See 38 C.F.R. § 3.321(b)(1). To afford an extraschedular rating based on interference without actual employment is to merge the criteria under § 3.321(b) with the criteria under 38 C.F.R. § 4.16. The Veteran reported in the July 2020 VA examination that he worked as a contractor and that his tinnitus causes interference with his employment because he is unable to be around power tools; however, a March 2018 VA examination notes that his tinnitus does not impact ordinary conditions of his daily life, and VA treatment records in January 2019 and September 2019 note that the Veteran works full time as a carpenter and do not note that his tinnitus interferes with his employment. As a result, the record does not establish interference with employment. Finally, the Veteran has not been hospitalized for his tinnitus at any time during the pendency of this appeal. The Board finds there are no "other related factors" upon which to award an extra-schedular rating. In conclusion, the preponderance of the evidence is against a disability rating in excess of 10 percent on any basis for the Veteran's tinnitus. As a preponderance of the evidence is against the award of a higher rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.