Citation Nr: 21031299 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-33 345 DATE: May 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for tinnitus is denied. FINDING OF FACT The Veteran's tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating authorized under the applicable criteria; factors warranting an extraschedular rating are not shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1, 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to November 1973 and from June 1974 to November 1977. By way of history, the Board notes that the issue of entitlement to service connection for tinnitus was previously before the Board in January 2013, whereupon the matter was granted in full. The current controversy represents the Veteran's continued appeal of the rating assigned for the service-connected tinnitus. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. A review of available VA treatment records as well as correspondence from the Veteran does not reflect that he has ever asserted that the symptomatology associated with his tinnitus has precluded him from securing and following substantially gainful employment. Moreover, the January 2009 VA examiner who evaluated the severity of the tinnitus did not find that it had such a severe impact on the Veteran's occupational functioning during the appeal period that he was precluded from securing and following substantially gainful employment. Accordingly, a claim for TDIU has not been raised by the record. Increased Rating for Tinnitus Service connection is in effect for tinnitus, rated as 10 percent disabling effective September 6, 2007, pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran seeks a rating in excess of that 10 percent. 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. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Pursuant to Diagnostic Code 6260, only a single 10 percent rating is assigned for tinnitus, regardless of whether tinnitus is found as being in one ear or in each ear or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2 (2006). In Smith v. Nicholson, 451 F.3d 1344, 1350-51 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA's interpretation of Diagnostic Code 6260 allowing for the assignment of only a single 10 percent rating for tinnitus, whether or not the tinnitus is determined to exist unilaterally or bilaterally. In consideration of the clear language of Diagnostic Code 6260 and the direction of the Federal Circuit in Smith, the Board concludes that the 10 percent schedular rating for the Veteran's tinnitus is the maximum rating assignable under Diagnostic Code 6260. Although the Veteran has not explicitly raised it, the Board does acknowledge that a rating in excess of the maximum schedular rating for tinnitus may be available on an extraschedular basis. To that end, the Board notes that the Court has set out a three-part test, based on the language of § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). After a review of the evidence of record, the Board finds that such a referral is not warranted. Here, although the Veteran has complained that his tinnitus symptoms interrupt his ability to participate in conversations with other people, there is no indication from the record that this interference has resulted in functional impairment of such a degree that the schedular criteria are inadequate to describe the severity of the disability. He was afforded a VA audiology examination in January 2009 to evaluate the severity of the tinnitus, during which he reported that the ringing in his ears was constant and interrupted his ability to sleep. He did not assert that it had any impact on his occupational functioning, and the VA examiner also did not make any finding to this effect. Therefore, the Board finds that the Veteran's tinnitus symptomatology is fully contemplated by the available diagnostic criteria, and that accordingly the Veteran has not satisfied the first prong of the Thun analysis. Referral for such an extraschedular rating is accordingly not warranted, and the claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.