BVA9500992 DOCKET NO. 93-07 086 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a compensable evaluation for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca A. Kelly, Associate Counsel INTRODUCTION The appellant had active duty from May 1960 to June 1964. This appeal arises from an April 1992 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA), Regional Office (RO), which found that the appellant was not entitled to a compensable evaluation for his hearing loss with tinnitus. This denial continued and confirmed the original noncompensable evaluation of bilateral hearing loss with tinnitus of June 1964. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he meets the regulatory requirements for a 10 percent evaluation for tinnitus; therefore, an increased evaluation of his service connected disability is warranted. The appellant's representative asserts that a Supplemental Statement of the Case is required because the RO's Statement of the Case did not adequately state reasons for the decision; the RO referred to guidelines used in their rating decision but failed to cite or expressly state the relevant rating criteria. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the appellant's claim for an increased (10 percent) evaluation for tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant has had periodic tinnitus since August 1964. 3. The appellant's symptoms of tinnitus have been persistent. CONCLUSION OF LAW A 10 percent rating for tinnitus is warranted. 38 U.S.C.A. § § 1155, 5107(a) (West 1993); 38 C.F.R. §§ 3.321, 4.7, 4.87a, Diagnostic Code 6260 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a)(West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant evidence has been obtained. There is no indication in the record that there are other records available that should be obtained. Therefore, no further development is necessary in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In evaluating the appellant's request for an increased rating, the Board considers the pertinent evidence of record, including the entire medical history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. In so doing, it is our responsibility to weigh the evidence. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Factual Background The appellant's service medical records are not available. The appellant was exposed to naval gunfire in August 1960, after which he experienced almost total hearing loss with pronounced tinnitus for one week. The VA examination of August 1964 included complaints of tinnitus in the left ear. No dizziness, nausea or discharge was noted. The appellant was cooperative. The audiometric examination findings included: Correct Word Speech Discrimination Ability Recognition Threshold RIGHT 94% 8 LEFT 98% 8 In March 1992, the VA examination was performed and the appellant presented the complaint that he was hard of hearing. The audiometric examination findings included: Correct Word Pure Tone Discrimination Ability Thresholds (Averages) RIGHT 96% 39 LEFT 96% 48 The clinical findings included that the appellant exhibited a severe high frequency sensorineural hearing loss in both ears. The appellant indicated the presence of a periodic tinnitus that matched with the audiometric measurements of 3 kHz pure tone at 65 dBHL in the right ear and at 80 dBHL in the left ear. The impression was periodic tinnitus in the left ear at 3 kHz and 80 dBHL and in the right ear at 3 kHz and 65 dBHL. Analysis Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155 (West 1993); 38 C.F.R. Part 4 (1993). When a question arises as to which of two evaluations shall be assigned within a diagnostic code, 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. 38 C.F.R. § 4.7 (1993) A noncompensable disability rating is warranted when no residuals have been shown. 38 C.F.R. § 4.31 (1993). According to Diagnostic Code 6260, a 10 percent evaluation is assigned for persistent tinnitus that results from head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1993). The 10 percent disability evaluation is the highest disability evaluation available for this disability pursuant to the VA's Schedule for Rating Disabilities. However, 38 C.F.R. § 3.321(b)(1) provides that an extra-schedular rating may be granted where the disability picture is exceptional or unusual with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In the instant case, the appellant has requested a higher disability be assigned to his tinnitus that is currently evaluated as noncompensable. Again, according to Diagnostic Code 6260, a 10 percent evaluation is assigned for persistent tinnitus that results from head injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1993). Diagnostic Code 6260 has an expressed requirement that a compensable evaluation display "persistent" symptoms of tinnitus. The interpretation of "persistent" by the undersigned requires that the symptoms of tinnitus have a lengthy duration, rather than a requirement of "constant" symptoms. The most recent audiometric measurements clearly corroborated the appellant's description of "periodic tinnitus" as early as August 1964. Moreover, the original VA examination substantiated the finding that the appellant has had tinnitus in his left ear since August 1964. Clearly, the evidence of record adequately supports a finding that appellant has had persistent symptoms of tinnitus. After review of the pertinent material and evidence of record, we conclude that the appellant's service-connected tinnitus, although not constant, does meet the plain meaning of the term persistent since it has been periodic over many years. Accordingly, the Board finds a basis for granting a 10 percent disability rating for tinnitus. ORDER A 10 percent disability evaluation for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.