Citation Nr: 21013443 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-38 807 DATE: March 9, 2021 ORDER An initial rating in excess of 10 percent for tinnitus, on an extraschedular basis, is denied. FINDING OF FACT The functional effects of the Veteran's tinnitus are contemplated by the rating criteria, and tinnitus is not manifested by factors such as a marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an extraschedular rating for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to July 1962. This appeal comes before the Board on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2019 and in August 2020, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Evaluations Disability evaluations are determined by the application of VA Schedule for Rating Disabilities (hereinafter Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Entitlement to an initial rating in excess of 10 percent for tinnitus, on an extraschedular basis. An April 2015 rating decision granted the Veteran’s claim of entitlement to service connection for tinnitus and assigned the maximum 10 percent rating under Diagnostic Code 6260 (recurrent tinnitus, unilateral or bilateral). 38 C.F.R. § 4.87. A single 10 percent rating is the maximum rating available for tinnitus. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). This appeal arises from the Veteran’s disagreement with that rating decision. It is noted that the Veteran is separately rating for hearing loss (20%) and vertigo (30%), which are not matters within the scope of this appeal. The Board referred the matter to the VA Director of Compensation in May 2019 and the Director thereafter, in October 2020, denied an extraschedular rating under 38 C.F.R. § 3.321(b) for tinnitus. As the Director of Compensation has made its required initial determination, the Board has jurisdiction to adjudicate the extraschedular tinnitus issue on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). The Veteran, and his representative, contends that his tinnitus warrants an extraschedular rating based on symptoms of ringing ears and loss of sleep that affects his daily life. See Appellate Brief (February 2021); Correspondence (May 2020). The Board concludes that the assignment of an extraschedular rating for service-connected tinnitus is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.87, Diagnostic Code 6260. As an initial matter, it is noted that the Board’s referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) does not mean the claim will succeed on the merits. The standard for referral is necessarily “based on a[n] evidentiary threshold that is lower than that for the decision to award an extraschedular rating.” Ray v. Wilkie, 31 Vet. App. 58, 62 (2019) (holding that the Board is not bound to grant an extraschedular benefit even if the Board itself previously determined that referral to the Director was appropriate). The Board’s May 2019 remand determined, in essence, that the evidence only suggested that the Veteran’s tinnitus adversely impacted his ability to function effectively, which was sufficient to trigger the Veteran’s procedural right to referral to the Director for extraschedular consideration. This finding did not involve a weighing of the favorable and unfavorable evidence to make a final determination on entitlement to an extraschedular rating. Therefore, the Board has not made its own determination on whether the evidence actually supports a finding that the Veteran is entitled to an extraschedular rating for his tinnitus. After a complete review of the record, the Board finds that the Veteran’s tinnitus symptoms are adequately contemplated by the Rating Schedule, and assignment of an extraschedular rating is not warranted, as explained below. First, the symptoms reported by the Veteran are not exceptional within the meaning of 38 C.F.R. § 3.321(b). The evidence of record reflect that the Veteran’s sleep impairment is not attributable to tinnitus, but rather to a mental disorder, posttraumatic stress disorder (PTSD). Indeed, the Veteran testified at an October 2019 Board hearing on his claim for service connection for PTSD, noting he had symptoms of sleep impairment. Also, the Veteran reported at his VA PTSD examination, dated in September 2020, that his PTSD included symptoms of chronic sleep impairment. The record shows that the Veteran is pursuing an appeal for PTSD. Here, the Veteran has consistently attributed his sleep impairment to his PTSD and not to his tinnitus. The attempt to obtain an extraschedular rating for the symptom of sleep impairment appears to be a backdoor attempt to obtain compensation for a symptom associated with his diagnosed psychiatric disorder, which is an impermissible basis for an extraschedular rating for tinnitus. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020) (en banc). Further, the symptom of ringing ears, also reported as a basis for an extraschedular rating, is not exceptional symptomatology as this is fully contemplated by the assigned schedular rating and represents the obvious symptom of any tinnitus diagnosis. Second, even were the Board to accept that sleep impairment is attributable to his service-connected tinnitus, this “effect” does not cause “marked interference with employment,” “frequent periods of hospitalization,” or other related factors. See 38 C.F.R. § 3.321(b)(1). The evidence of record reflects the Veteran’s employment status as retired, without indication that his tinnitus interfered with his employment. Indeed, prior to retirement, the record reveals that the Veteran was employed, was then laid off due to downsizing, and was then rehired with another employer. Thus, overall, the evidence clearly shows that related factors such as a marked interference with employment or frequent periods of hospitalization are not present here. It is noted that “extraschedular consideration is appropriate only after the [AOJ] has exhausted all other schedular tools for a disability rating.” Greenfield v. Tran, No. 18-1907, 2021 U.S. App. Vet. Claims LEXIS 107, at *2 (Jan. 29, 2021) (citing Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020) (en banc). Here, the existing Rating Schedule is adequate to evaluate the Veteran’s reported symptomology for his tinnitus. In this regard, the Veteran’s complaint is that his tinnitus “causes him to lose sleep and [] affects his daily life with constant ringing in his ears.” See Appellate Brief (February 2021); see also Correspondence (May 2020). In this instance, 38 C.F.R. § 4.130 (Schedule for Rating –Mental Disorders) contemplates the Veteran’s reported complaint of lack of sleep and/or difficulty sleeping; and 38 C.F.R. § 4.87 (Schedule of Ratings—Ear) contemplates his reported complaint of constant ringing in the ears. The Veteran’s claim for compensation under 38 C.F.R. § 4.130, based on PTSD, remains in remand status in another appeal stream not before the undersigned Veterans Law Judge. Based on the foregoing, the Board finds that the Rating Schedule adequately contemplates the Veteran’s symptoms of recurrent tinnitus. The disability is not exceptional under the framework of 38 C.F.R. § 3.321(b) as sleep impairment is at present associated with a nonservice-connected disability (PTSD) and it is not linked to tinnitus; there exists a schedular mechanism to account for the sleep impairment; and functional impairment is not established. Further, even were the symptoms “exceptional” under 38 C.F.R. § 3.321(b), they are not manifested by related factors such as a marked interference with employment or frequent periods of hospitalization. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.