BVA9504784 DOCKET NO. 93-10 194 ) 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: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from August 1961 to April 1974. This appeal is from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan in November 1992. CONTENTIONS OF APPELLANT ON APPEAL In essence, it is argued that, like his service-connected hearing loss, the veteran's tinnitus is the result of inservice acoustic trauma; that he has ringing in his ear most of the day; that the tinnitus makes it difficult to concentrate during conversations and impairs his ability to hear spoken words; and that tinnitus warrants a separate, compensable rating. He also contends that the tinnitus is a "great source of aggravation" in having to deal with daily life. 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 veteran'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 a preponderance of the evidence is against a compensable evaluation for tinnitus. FINDINGS OF FACT 1. Sufficient evidence for an equitable disposition of the issue on appeal is of record. 2. The veteran is shown to have occasional tinnitus due to acoustic trauma; tinnitus is not shown by the evidence to be persistent. 3. The veteran's tinnitus does not present an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for compensable rating for tinnitus are have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, § 4.7 and Diagnostic Code 6260 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claim for an increased rating for tinnitus is well grounded. The Board finds that the facts relevant to the issue on appeal have been properly developed and, accordingly, the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied in accordance with 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The VA Schedule for Rating Disabilities provides for a 10 percent rating when tinnitus is persistent as a symptom of head injury, concussion or acoustic trauma. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Diagnostic Code 6260. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture 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. 38 C.F.R. § 3.321(b)(1). The Board has also considered all regulatory provisions which are potentially applicable through the assertions and issues raised in the evidence of record as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). In this case, the veteran has service connection for bilateral defective hearing with tinnitus, for which a 30 percent rating is now assigned. Audiometric studies have shown a precipitous, moderate to severe high and middle frequency loss, bilaterally. The disability has been rated by the RO as 30 percent disabling under Diagnostic Code 6103 which reflects the demonstrated degree of bilateral defective hearing alone. The tinnitus is considered to be zero percent disabling. In the statement of the case, the RO noted that the veteran's service medical records were negative for acoustic trauma or head concussion. However, the veteran served in combat in Vietnam (as confirmed by his receipt of the Combat Infantryman Badge) and had additional service noise exposure according to his testimony at a hearing in February 1990 on a different issue. Transcript, 11. The evidence supports the conclusion that his tinnitus is the result of acoustic trauma. Thus, the pivotal question in this case is whether the veteran's tinnitus, resulting from acoustic trauma, is "persistent" so as to meet the schedular criteria for a 10 percent rating. While tinnitus must be "persistent," there is nothing in the regulations which requires it to be absolutely relentless or constant. Historically, when the veteran was examined by the VA in June 1989, there were no complaints or other references to tinnitus noted. On a private audiometric evaluation in August 1989, the veteran's tinnitus was described as "occasional." A November 1989 VA examination report confirms the presence of bilateral hearing loss but is silent as to tinnitus. Private medical records dated in March 1992 reflect a complaint of "occasional tinnitus." According to the reports of an audiological evaluation by the VA in September 1992, however, the veteran had no tinnitus. In February 1993, the veteran's wife submitted a statement to the effect that her husband has told the doctors about his tinnitus over and over again, and that living with him, she knows and feels his ongoing distress. In spite of the veteran's contention in support of his claim for VA compensation that his tinnitus occurs "most of the day," the medical evidence has repeatedly shown that it is no more than occasional. The Board finds the medical evidence to be more credible than the contentions made in support of obtaining increased disability benefits. Accordingly, the criteria required for a 10 percent rating have not been met or approximated. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.7, Part 4, Diagnostic Code 6260. Moreover, the veteran's tinnitus is not shown to create an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to warrant an extraschedular increased evaluation pursuant to 38 C.F.R. § 3.321(b)(1). The evidence shows that he receives no more than occasional medical attention for his complaints of tinnitus and there is no contention or evidence to show that tinnitus markedly interferes with his employment even though it may be annoying. The RO has determined that the veteran's complaints of occasional tinnitus are part of his underlying hearing loss and do not represent a separate entity and that, even if tinnitus were to be assigned a separate rating, a zero percent rating would be appropriate. The Board agrees that a zero percent rating is appropriate in this case; however, the United States Court of Veterans Appeals has stated, "The critical element [in determining whether appellant's disabilities may be rated separately] is [whether any] of the symptomatology for any one of these . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). Tinnitus has different manifestations from hearing loss and is capable of being assessed on its own. Consequently, there is a sound basis for a separate rating for tinnitus. However, inasmuch as the requirements for a compensable rating for tinnitus have not been met, there would be no advantage to rating the tinnitus separately at this time. ORDER Entitlement to a compensable evaluation of for tinnitus is denied. JANE E. SHARP 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.