Citation Nr: 22018296 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-23 712 DATE: March 28, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for bilateral tinnitus is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is remanded. FINDING OF FACT The Veteran is in receipt of the maximum schedular rating for bilateral tinnitus. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for bilateral tinnitus are not met. 38 U.S.C. § 1155; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to December 1971, to include service in the Republic of Vietnam. His awards and decorations include the Purple Heart and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board will first address two procedural matters before reaching the merits of the tinnitus claim. First, the Veteran had been scheduled to appear before a Veterans Law Judge by virtual hearing on July 6, 2021, but he stated that technical difficulties prevented his participation. See Veteran's July 2021 Handwritten Memorandum (requesting a rescheduled hearing). However, the Veteran later withdrew his hearing request. See Veteran's February 2022 Handwritten Memorandum ("I am withdrawing my hearing request and allowing the Judge to decide [my] appeal based on the information already in my file."). Thus the Board will proceed with adjudication. 38 C.F.R. § 20.704(e). Second, the Veteran's April 2014 Notice of Disagreement appeals several issues to the Board; however, the subsequent January 2015 AOJ correspondence to the Veteran explains that only the issues of increased ratings for bilateral hearing loss and tinnitus were accepted. Decisions on the other issues listed on the VA Form 9 (PTSD, depression, insomnia, loss of memory, nervous condition, eye problem, spinal disc problem, and hypertension) were deferred as premature because an appealable decision had not yet been made. The Veteran later elected review for bilateral hearing loss and tinnitus by a Decision Review Officer, with a decision and Statement of the Case issued in April 2017. In May 2017, the Veteran filed a second VA Form 9, appealing his ratings for bilateral hearing loss, tinnitus, and the other aforementioned issues (PTSD, etc.). Then, in June 2017, the AOJ informed the Veteran that his May 2017 statement could not be accepted as a Notice of Disagreement, as the underlying May 12, 2014 rating decision had become final. (Moreover, the Board notes in passing that effective March 24, 2015, VA adopted a standardized claims form system, and therefore the Veteran's VA Form 9 could not be accepted as a Notice of Disagreement even if there had been appealable rating decision. 79 Fed. Reg. 57660 (Sept. 25, 2014)). This letter did not pertain to bilateral hearing loss and tinnitus. Rather, it applied only to the other, deferred issues listed above. The letter correctly explained that the May 2014 rating decision had become final for those issues but that the Veteran could seek to reopen the claims or file for an increased rating, as appropriate. The Veteran may wish to seek assistance from his servicing VSO in doing so. 1. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. The Veteran seeks an increased rating for his service-connected tinnitus, for which he is currently receiving a 10 percent rating under DC 6260. This in this only applicable diagnostic code for tinnitus, which allows for a single 10 percent disability rating for tinnitus regardless of whether it is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); see also Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). No higher disability rating is available under the Rating Schedule. Moreover, in his May 2017 Form 9, the Veteran indicated that "Tinnitus rated at 10 percent is acceptable." See also March 2022 Appellant's Brief. Accordingly, as there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or otherwise increase the Veteran's total compensation for his service-connected tinnitus, his claim for an increased rating must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is remanded. In June 2016, the Veteran reported to his VA audiologist that his hearing had worsened since his most recent VA compensation and pension examination in January 2014. See June 2016 VA Treatment Note. Given this report, and the eight intervening years, the Board must order a new examination to determine the current state of the Veteran's disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Updated treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure updated VA treatment records. 2. After securing necessary authorization, obtain any relevant updated private treatment records the Veteran may wish to submit. 3. After completing directives #1 and #2, schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss. The claims file should be made available to and reviewed by the examiner. Any tests deemed necessary should be conducted and all findings reported in detail. S. Bush Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saumur, Daniel P. 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.