Citation Nr: 21011591 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 20-10 151 DATE: March 2, 2021 ORDER Entitlement to an effective date earlier than October 1, 2018 for service connection for tinnitus is denied. Entitlement to a rating in excess of 10 percent for tinnitus, to include on an extraschedular basis as well as referral for consideration of a total disability rating based on individual unemployability (TDIU) due solely to tinnitus, is denied. FINDINGS OF FACT 1. VA received an intent to file on October 1, 2018, and a claim for service connection for tinnitus on October 10, 2018; no earlier claim for service connection for tinnitus is either alleged or shown by the record. 2. The Veteran’s tinnitus is assigned a single 10 percent rating, which is the maximum evaluation authorized under Diagnostic Code (Code) 6260 and the preponderance of the evidence is against finding that an extraschedular evaluation or a referral for consideration for a TDIU based solely on tinnitus is warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than October 1, 2018 for service connection for tinnitus have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.151, 3.400. 2. The criteria for entitlement to a rating in excess of 10 percent for tinnitus, to include on an extraschedular basis as well as referral for consideration of a TDIU due solely to tinnitus, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.87, Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1993. He served honorably in the U.S. Army, including service in Korea and Panama, and is a recipient of a Combat Infantryman Badge. The Board thanks the Veteran for his service to our country. The Board notes that additional evidence was associated with the record following a January 2020 statement of the case; however, as the evidence contains no evidence pertinent to the claims for an earlier effective date or an increased rating for tinnitus, the Board will proceed with adjudication. In September 2020 the Veteran’s representative requested additional time to submit evidence through December 24, 2020. As that period has concluded, the Board will proceed with adjudication. 1. Entitlement to an effective date earlier than October 1, 2018 for service connection for tinnitus is denied. The Veteran contends, through his attorney, that an effective date earlier than October 1, 2018 for service connection for tinnitus is warranted. The Board finds that an earlier effective date is not warranted. Except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). The elements for any claim formal or (before March 24, 2015) informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” See Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019). A claim must identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality. Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply to claims filed on or after March 24, 2015. Prior to March 24, 2015, a “claim” was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In deciding what disabilities, conditions, symptoms, or the like the claim-stating documents are sympathetically understood to be identifying, VA must look beyond the four corners of those documents when the documents themselves point elsewhere. Shea v. Wilkie, 926 F.3d 1362, 1369 (Fed. Cir. 2019). Where a claimant’s filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability. Id. at 1370. In this case, an intent to file was received on October 1, 2018. On October 10, 2018, the Veteran submitted a form 21-526EZ identifying tinnitus as a new claimed disability. The most recent intent to file form prior to October 1, 2018 was received on August 19, 2017, over a year before the receipt of the October 2018 21 526EZ claim for tinnitus. Prior to March 24, 2015, the Veteran filed multiple formal and informal claims. In a July 1993 form 21 526, the Veteran identified the nature of sickness, disease, or injuries for which the claim was being made as “broken nose – 1992” and “nerves condition – Dec 91-June 93” and indicated that he had received treatment at an Army hospital from December 1991 to June 1993; he did not identify any other facilities where he had been treated. There are no references to service connection for other specific or nonspecific disorders. In an October 1994 letter, the Veteran’s then-representative stated, “it is requested that the claim of the … Veteran be reviewed to determine the propriety of allowing an increased rating for the Veteran’s service-connected nose condition, based on treatment records received at [a] VA Medical Center from June of 1994 to the present date.” There are no references to the issue of service connection. In another October 1994 letter, the Veteran’s then-representative stated that the Veteran “wishes to include consideration for service connection for a nervous condition” on the increased rating claim and again identified the treatment dates at the VA Medical Center. There are no references to service connection for other specific or nonspecific disorders. Read in the light most favorable to the Veteran, the Agency of Original Jurisdiction (AOJ) construed this as an increased rating claim, as the Veteran was already service connected for generalized anxiety disorder. In a November 1999 letter, the Veteran’s then-representative requested that attached documents “be used as supporting documentation in reference to his pending claim requesting an increased rating for his service-connected generalized anxiety disorder.” There are no references to the issue of service connection. While the referenced documents have not been associated with the record, the representative noted that the documents pertained to treatment he received for a nervous condition; moreover, Shea did not deal with facts in which the claimant’s filing referenced or included medical records in the context of an increased rating for specific service-connected disabilities and even when sympathetically read, the Board cannot construe a claim requesting an increased rating for a psychiatric disorder as a claim for service connection for tinnitus, even at a high level of generality. In an August 2003 letter, the Veteran’s then-representative requested that a claim be made for an increased evaluation of his service-connected anxiety disorder, referencing treatment records at a VA Medical Center. There are no references to the issue of service connection. In a September 2003 statement, the Veteran identified treatment facilities where he had been treated for his nose in 1993 and stated, “I am still having breathing problems through my nose.” Read in the light most favorable to the Veteran, the AOJ construed this as an increased rating claim for his service-connected deviated septum. The statement was accompanied by a form 21-4142 identifying again the same two treatment facilities. There are no references to the issue of service connection in these documents. In a June 2008 form 21-4138, the Veteran’s then-representative requested, “please accept this as an informal claim for INCREASE FOR PTSD (COMP),” noting that a formal claim on a form 21-4138 would be submitted within 30 days. The form was accompanied by a form 21-22 identifying the Veterans Service Organization as the Veteran’s representative. In the referenced July 2008 form 21-4138, the Veteran stated, “I request consideration for an increase in my PTSD rating.” Accompanying this form were copies of the form 21-22. There were no references in any of the documents to the issue of service connection. In an August 2008 form 21-4138, the Veteran stated, “I request service connection for both knees and lower back.” He identified various facilities where he had received treatment, in addition to referencing his service medical records. The form was accompanied by a field transmittal record form noting that a 21-4138 had been filed for a new compensation claim. There are no references to service connection for other specific or nonspecific disorders in these documents, including tinnitus. In a June 2010 form 21-4138, the Veteran’s then-representative requested, “please accept this as an informal claim for VA COMPENSATION (ANXIETY),” noting that a formal claim on a form 21-526B would be submitted within 30 days. A VCAA acknowledgement and form 21-4142 indicating treatment at a VA facility were received on the same day. The referenced July 2010 form 21-526b identified an increased evaluation for “anxiety depression” as the claimed issue and identified treatment at VA facilities. This was accompanied by a form 21 4142 identifying treatment at a VA facility and a field transmittal record form noting that a 21-526b and 21-4142 had been filed for a reopened compensation claim. There were no references in any of the documents to the issue of service connection. In an August 2014 form 21-4138, the Veteran’s then-representative requested, “please accept this as an informal claim for increase in SC for rhinitis, deviated septum, R/O lower back pain, headaches secondary to rhinitis,” nothing that a formal claim would be submitted in 30 days. This was accompanied by a field transmittal record form noting that a 21-4138 and 21-22 had been filed for an informal new compensation claim. The referenced September 2014 form 21 526b identified increased evaluations for deviated septum and chronic rhinitis, reopening of the issue of lower back condition, and service connection for headaches secondary to rhinitis as the claimed issues and identified treatment at VA facilities. This was accompanied by a copy of the August 2014 form 21-4138, a form 21-22, and another form 21-4138 from the Veteran requesting an increase for deviated nasal septum and chronic rhinitis, noting sinus headaches, requesting to reopen his lower back claim, and again identifying his VA treatment facilities. There are no references to service connection for other specific or nonspecific disorders in these documents, to include no reference to tinnitus. The Board concludes that none of the communications in the claims file that may be construed as an application or claim, or documents pointed to by those claim stating documents, identify tinnitus as the sickness, disease, or injury for which compensation is sought, even at a high level of generality. Additionally, to the extent that claim-stating documents point to the Veteran’s medical records, there are no reasonably ascertainable diagnoses of tinnitus in his medical records prior to March 24, 2015. Accordingly, the Board finds that there was no formal or informal claim for service connection for tinnitus prior to the October 2018 claim. Having established that the date of claim is October 1, 2018, the Board notes that even if entitlement arose prior to this date, the effective date would be October 1, 2018, as that would be the later of the two dates. Hence, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against finding that an earlier effective date for service connection for tinnitus is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, claim for an effective date for service connection for tinnitus prior to October 1, 2018, is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 10 percent for tinnitus, to include on an extraschedular basis as well as referral for consideration of a TDIU due solely to tinnitus, is denied. The Veteran, through his attorney, contends that an increased rating for tinnitus, to include on an extraschedular basis and as a TDIU as part and parcel of the increased rating claim, is warranted. The Board finds that a higher rating is not warranted. 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. In the exceptional case where the criteria in VA’s Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. 38 C.F.R. § 3.321(b)(1). Such a rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. Finally, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, as is the case here for a TDIU based solely on tinnitus, it must be rated at 60 percent or more. The Veteran’s tinnitus does not meet the schedular criteria for the period on appeal. It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the schedular requirements above, as is the case here, an extraschedular rating is for consideration where the veteran is nonetheless unable to secure and follow a substantially gainful occupation due to service-connected disability. Id.; see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board may not grant a TDIU on an extraschedular basis in the first instance. Rather, the matter must be referred to the Director of the Compensation Service (Director) for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In such case, the Board’s analysis is limited to merely granting or denying the referral for TDIU to the Director to consider the claim on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). The Board will refer the matter to the Director under 4.16(b) only where Board determines that there is plausible evidence that the veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disability. In this case, in an August 2018 audiology note, the Veteran described his tinnitus as a longstanding, high-pitched buzzing sound in both ears. The audiologist noted that in a quiet examination room without use of amplification, the Veteran was able to follow the conversation and give appropriate answers to case history questions. In a November 2018 VA examination report, the Veteran described his tinnitus as a constant buzzing bilaterally. The examining audiologist concluded that it had no impact on the ordinary conditions of daily life, including his ability to work. There is no evidence of record of functional impairment due to service connected tinnitus. The Board observes that the Veteran has a bachelor’s degree in business and a minor in marketing and over two decades’ of experience in the electronics field and that he was employed at a gym during the period on appeal; indeed, when he was offered a position at a different company, he received a counteroffer from his employer including a pay raise, hour increase, and training for additional certification. The audiologist concluded that his tinnitus had no impact on his ability to work and there is no evidence indicating otherwise. Accordingly, the Board finds that there is no plausible evidence that the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected tinnitus. The Board acknowledges the Veteran’s representative’s contention that an extraschedular evaluation is warranted. However, the representative provided no argument, and the record does not support, that the schedular evaluation is inadequate to rate the Veteran’s tinnitus. The Veteran’s tinnitus is manifested by buzzing or ringing in the ears, which are the symptoms contemplated and compensated in the assigned 10 percent rating. Accordingly, referral for extraschedular consideration is not warranted. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus and the preponderance of the evidence is against finding that an extraschedular evaluation or a referral for consideration for a TDIU based solely on tinnitus is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim for an increased rating for tinnitus on an extraschedular and schedular basis is denied, as is referral for entitlement to TDIU on an extraschedular basis based solely on tinnitus. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.