Citation Nr: 21030658 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-16 432 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a total disability rating based on individual unemployability is dismissed. FINDINGS OF FACT 1. The Veteran experiences tinnitus, for which the maximum schedular rating of 10 percent is assigned. 2. The Veteran is in receipt of a 100 percent rating for prostate cancer and special monthly compensation for other disabilities rated at 60 percent or greater. A grant of TDIU can be of no further benefit, and there is therefore no case or controversy concerning whether the Veteran is entitled to any benefits that may be inferred from his claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.87, Diagnostic Code 6260. 2. There is no question of law or fact involving the award of entitlement to special monthly compensation based on award of TDIU; the appeal is moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to July 1968. The Board notes that the Veteran requested a hearing on his substantive appeal. However, in an April 2021 correspondence, the Veteran's representative waived the hearing request. 1. Entitlement to a rating in excess of 10 percent for tinnitus The Veteran claims entitlement to a disability rating in excess of 10 percent for his tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260, provides for a 10 percent disability rating for recurrent tinnitus. That rating is the maximum assignable for tinnitus under Diagnostic Code 6260, and it applies whether the sound is perceived in one ear, both ears, or in the head. See Note (2) following 38 C.F.R. § 4.87, Diagnostic Code 6260. The facts are not in dispute. Resolution of the Veteran's appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, DC 6260. Regardless of whether the Veteran's tinnitus is perceived as unilateral or bilateral-in one or both ears-a single 10 percent rating is the maximum rating assignable. Id. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, or for that matter, an evaluation in excess of 10 percent on any basis, granting the Veteran's appeal is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994). The law, not the underlying facts, is dispositive in this matter. 2. Entitlement to a total disability rating based on individual unemployability Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. The central inquiry is "whether a veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate)); see 38 U.S.C. § 1114 (s). Here, the Veteran has been awarded both a 100 percent rating for prostate cancer and SMC at the housebound rate, based on separate disabilities totaling 60 percent or more, for the entire period on appeal. Therefore, consideration of TDIU no longer serves any useful purpose. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to the claim for TDIU is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Creegan 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.