Citation Nr: 22016458 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-04 401 DATE: March 22, 2022 ORDER Entitlement to a schedular rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for tinnitus on an extraschedular basis is remanded. FINDING OF FACT The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or bilateral condition. CONCLUSION OF LAW There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for service-connected tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 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 May 1982 to October 1985. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, 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. Entitlement to a schedular rating higher than 10 percent for tinnitus The Veteran contends that his tinnitus is more disabling than the rating assigned. The Veteran's tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). The Board acknowledges the Veteran's reports that his tinnitus wakes him up at night and that he experiences constant ringing, to include three different sounds in his ears. However, the Veteran has been assigned the maximum schedular rating available for tinnitus, which is assigned regardless of the extent of the tinnitus and whether the ringing is unilateral or bilateral. As there is no legal basis upon which to award a higher or separate schedular rating for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no doubt to be resolved and the Veteran's claim for a rating in excess of 10 percent for tinnitus must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is remanded. The Veteran asserts that the symptoms of his service-connected bilateral hearing loss are more severe than presently evaluated. In this regard, the Veteran testified that he believed that his bilateral hearing loss worsened from the time of his last evaluation, to include that he has difficulty with hearing the television and understanding what people are saying during conversations. See September 2020 Hearing Testimony. The Board observes that the Veteran was most recently afforded audiological testing at a Hearing Loss and Tinnitus Disability Benefits Questionnaire in December 2016. As this examination took place over five years ago and the Veteran has alleged that his hearing has worsened, the Veteran must be provided with an examination which considers the current severity of his bilateral hearing. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Furthermore, the Veteran testified that he underwent a VA hearing test a few months prior to the hearing. However, the results of that audiological testing are not of record. Here, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claim on appeal for the rating period should be associated with the Veteran's claims file. 2. Entitlement to an extraschedular rating for tinnitus is remanded. As noted above, the Veteran is in receipt of the maximum schedular rating for tinnitus. However, during the September 2020 hearing, the Veteran reported symptomatology and functional impairment that presents an unusual and exceptional disability picture. Therefore, based on the Veteran's assertions that his service-connected tinnitus prevents him from sleeping and causes him to become dizzy, referral of the issue for an extraschedular rating is in order, as the schedular rating arguably does not adequately contemplate his disability picture. As such, the issue is remanded so that they AOJ may forward the case to the Under Secretary for Benefits or the Director of the Compensation Service to address whether an assignment of an extraschedular rating for the Veteran's service-connected tinnitus is warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the period from January 2019 to the Present, to include audiological testing performed at the Birmingham, Alabama VAMC. All records/responses received must be associated with the claims file. 2. Next, ask the Veteran to complete a VA Form 21-4142 for non-VA health care providers who have treated him for his service-connected bilateral hearing loss and/or tinnitus. Make two requests for any identified non-VA records, unless it is clear after the first request that a second request would be futile. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. Schedule the Veteran for an audio examination to assess the severity of his bilateral hearing loss. 4. Refer the Veteran's claim for an increased rating for tinnitus to VA's Director of Compensation Service for extraschedular consideration. 5. Re-adjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.