Citation Nr: 22018599 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-27 758 DATE: March 29, 2022 ORDER An initial rating higher than 10 percent for tinnitus is denied. REMANDED The issue of entitlement to an initial compensable rating for bilateral hearing loss is remanded. The issue of entitlement to compensation for dizziness, loss of balance, and nausea, as secondary to the service-connected tinnitus and/or hearing loss, is remanded The issue of entitlement to compensation for headaches, as secondary to the service-connected tinnitus and/or hearing loss, is remanded. FINDING OF FACT The Veteran is in receipt of the maximum disability rating for tinnitus. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to May 1959 and from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision. The Veteran testified at a Board hearing in February 2022 before the undersigned. 1. An initial rating higher than 10 percent for tinnitus is denied. The April 2017 rating decision granted service connection for recurrent tinnitus, with an evaluation of 10 percent, effective August 4, 2015. The Veteran seeks a higher rating. 08/16/2017, NOD. The Veteran's tinnitus is rated pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260. Diagnostic Code 6260 provides a single rating 10 percent for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. This is the highest rating available. As the Veteran's disability is explicitly listed in the rating schedule, rating it pursuant to an alternate Diagnostic Code would not be appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The evidence of record establishes that the Veteran experiences bilateral and recurrent tinnitus. He has also reported a history of dizziness and headaches. 08/16/2017, Correspondence; 02/09/2022, Hearing Transcript. The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Based on statements made by the Veteran in the context of the present claim, the Board finds that he has raised the issues of compensation for dizziness and headaches, as secondary to his service-connected tinnitus and/or hearing loss. These issues will be addressed separately in the Remand section, below. Turning to the ringing in the Veteran's ears, the Board finds that this symptomatology fully contemplated by the rating criteria. Further, the Veteran's current 10 percent rating is the highest schedular rating for tinnitus available under Diagnostic Code 6260. A higher rating is not available as a matter of law. REASONS FOR REMAND 1. The issue of entitlement to an initial compensable rating for bilateral hearing loss is remanded. The April 2017 rating decision granted service connection for bilateral hearing loss, with an evaluation of 0 percent, effective August 4, 2015. The Veteran seeks a higher rating. 08/16/2017, NOD. The Veteran underwent VA examinations in April 2017 and February 2019. At the February 2022, Board hearing, he and his spouse reported that his hearing loss had worsened in the last two years. In this regard, they mentioned that they had sought treatment for the worsening symptoms, but this had not been possible due to the pandemic. Regarding the severity of the symptoms, it was explained that the Veteran could not hear conversation, radio, or television, without his hearing aids. The Veteran's hearing testimony suggests that the Veteran's symptoms have experienced a worsening since his last VA examination in February 2019. In view of this, the appropriate course of action is to remand for a new VA examination prior to a decision on the merits. 2. The issue of entitlement to compensation for dizziness, loss of balance, and nausea, as secondary to the service-connected tinnitus and/or hearing loss, is remanded. 3. The issue of entitlement to compensation for headaches, as secondary to the service-connected tinnitus and/or hearing loss, is remanded. As noted above, the Veteran has raised the issues of compensation for dizziness and headaches, as secondary to his service-connected tinnitus and/or hearing loss. VA will adjudicate as part of a claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, including entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (holding that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim). Significantly, the claimant need not assert entitlement to such ancillary benefits at the time the claim is filed. Id.; see also Grimes v. McDonough, 34 Vet. App. 84 (2021) (holding that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream). To the extent that these symptoms (dizziness/loss of balance and headaches) are manifestations of a condition that is caused or aggravated by either the Veteran's hearing loss or his tinnitus, they are encompassed by the Veteran's increased rating matter currently before the Board. As such, both issues are under the Board's jurisdiction. VA is obligated to provide an examination when there is competent medical evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record reflects documentation concerning dizziness and . See Medical Treatment Record- Non-Government Facility. As it is unclear to the Board whether dizziness/balance issues and/or the headaches are related to the Veteran's service-connected hearing loss and/or tinnitus, and thus whether additional compensation may be warranted. Based on the foregoing, a remand is necessary to obtain a VA examination and opinion addressing the nature and etiology of the Veteran's dizziness/balance issues and/or the headaches. These matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include recording any functional impacts. 2. Schedule the Veteran for an appropriate VA examination(s) with the appropriate clinician(s) to determine the nature and etiology of the Veteran's reported (a) dizziness/loss of balance/nausea and (b) headaches. The examiner must review the claims file to become familiar with the Veteran's relevant medical history.. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. Please complete the Functional Impact section of the report(s). The examiner is asked to provide a response to the following: (a.) Can the Veteran's dizziness/balance/nausea and/or the headaches be considered a complication of his service-connected hearing loss and/or tinnitus? Note: A "complication" is a condition that is considered to be so closely related to the disability at issue that it may be considered a part of that service-connected disability. (b.) If the dizziness/balance/nausea and/or the headaches can be considered a complication of his hearing loss and/or tinnitus, please describe the nature and severity of any current residuals. (c.) If the dizziness/balance/nausea and/or the headaches cannot be considered a complication of the hearing loss and/or tinnitus, please state whether it is at least as likely as not (50 percent probability or greater) that the dizziness/balance/nausea and/or the headaches was caused by the Veteran's service-connected hearing loss and/or tinnitus. Please explain why or why not. (d.) If not caused by the service-connected hearing loss and/or tinnitus, is it at least as likely as not that the Veteran's dizziness/balance/nausea and/or the headaches was worsened beyond its normal progression by the service-connected hearing loss and/or tinnitus. Please explain why or why not. (e.) If the examiner finds that the Veteran's dizziness/balance/nausea and/or the headaches was worsened beyond normal progression (aggravated) by the service-connected hearing loss and/or tinnitus, please describe the degree of aggravation attributable to the hypertension. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.