Citation Nr: A22022950 Decision Date: 11/15/22 Archive Date: 11/15/22 DOCKET NO. 220304-225723 DATE: November 15, 2022 ORDER Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. FINDING OF FACT From November 12, 2021, the Veteran's tinnitus is rated as 10 percent disabling, which is the maximum schedular rating permitted for tinnitus. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1967 to July 1970. A rating decision was issued in December 2021 granting service connection for tinnitus with an evaluation of 10 percent effective November 12, 2021. In January 2022, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of the December 2021 rating decision. In February 2022, the Agency of Original Jurisdiction (AOJ) issued the rating decision on appeal, which continued the 10 percent evaluation for tinnitus. In the March 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the February 2022 AOJ decision on appeal. 38 C.F.R. § 20.301. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating A disability rating is determined by applying VA's Schedule for Rating Disabilities (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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an evaluation in excess of 10 percent for tinnitus In the January 2022 Supplemental Claim, the Veteran wrote, "I was awarded 10 percent for tinnitus and the total compensation shows 40 percent. I was already at 40 percent due to diabetes, therefore compensation should show 50 percent. I am not questioning 10 percent awarded, just total." Additionally, in the March 2022 VA Form 10182, the Veteran wrote, "I am currently 40 percent disabled due to diabetes and I was awarded an additional 10 percent for tinnitus. According to the VA benefits compensation chart 10 percent and 40 percent equal 46 percent. I was told the 10 percent is included in the 40 percent therefore there is no additional compensation." The Board acknowledges the Veteran's contentions regarding his combined rating and that he was not actually requesting a higher rating for tinnitus. However, the only determination made in the February 2022 rating decision on appeal was the continuation of the 10 percent rating for tinnitus, so that is the only issue the Board can adjudicate. The Board would like to take this opportunity to try to also answer the question the Veteran really appears to be asking: why isn't my combined rating higher? In this case, the Veteran is currently service connected for the following conditions: diabetes mellitus, type II (20 percent); diabetic neuropathy of the right lower extremity associated with diabetes mellitus, type II (10 percent); diabetic neuropathy of the left lower extremity associated with diabetes mellitus, type II (10 percent); tinnitus (10 percent); and bilateral hearing loss (0 percent). The Veteran seems to be using standard addition math of 20+20+10 = 50 to reach the conclusion that he should be receiving a 50 percent combined rating. This is an understandable assumption. However, the combined disability rating is not calculated by straight addition. Instead, it is calculated using the Combined Ratings Table (the Table) under 38 C.F.R. § 4.25. 38 C.F.R. § 4.26 directs that any service-connected disabilities that have the "bilateral factor" must be considered first. Thus, combining the diabetic neuropathy of the right lower extremity associated with diabetes mellitus, type II (10 percent) and diabetic neuropathy of the left lower extremity associated with diabetes mellitus, type II (10 percent) using the Table equals 19. We then must add 10 percent of 19 (1.9) to 19, which equals 20.9, which rounds down to 20. The rating for the neuropathies is therefore treated as a single 20 percent disability for the purpose of combining the ratings. Following the consideration of any bilateral factor, the remaining service-connected disabilities are combined starting with the highest rated disability and ending with the lowest rated disability. Thus, combining 20 from the bilateral factor neuropathy with 20 for diabetes mellitus, type II equates to 36 on the Table. Combining 36 with 10 for the Veteran's tinnitus equals 42. While the Veteran also has a noncompensable (0 percent) rating for his bilateral hearing loss, this does not affect his combined rating. Thus, rounding 42 down equates to a combined rating of 40 percent. Therefore, while the Board acknowledges the Veteran's contentions regarding his combined rating, the Veteran's current 40 percent combined rating is correct. Moving on to the initial rating for tinnitus, the period on appeal begins on November 12, 2021, the date the Veteran was awarded service connection. The Veteran's tinnitus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 6260, for tinnitus. Under Diagnostic Code 6260, a maximum 10 percent rating is warranted for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland's Illustrated Medical Dictionary 1900 (33rd ed. 2020). As the Veteran is in receipt of the maximum schedular rating for tinnitus, there is no basis to award a higher schedular rating. Neither the Veteran nor the record have raised any additional symptoms or functional impairment resulting from tinnitus; in fact, the Veteran has explicitly stated he is not seeking a rating higher than 10 percent. Thus, the evidence persuasively weighs against the claim for entitlement to an evaluation in excess of 10 percent for tinnitus and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (holding the benefit-of-the-doubt doctrine is not for application when the evidence is persuasively for or against the claim). The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.