Citation Nr: 0005306 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-33 998 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for headaches, claimed as secondary to the service-connected tinnitus. 2. Entitlement to an increased rating for the service- connected tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from January 1974 to December 1975. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the RO. The Board remanded this matter for development of the record in May 1997 and April 1998. The Board also notes that the veteran has submitted a claim of service connection for a right ankle condition. As this issue has not been developed for appellate review, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's headaches are not shown to have been caused or aggravated by his service-connected tinnitus. 3. The veteran's tinnitus is shown to be manifested by constant ringing in both ears; however, disability associated with the veteran's tinnitus does not present an exceptional disability picture such that there is marked interference with employment or a requirement for frequent periods of hospitalization. CONCLUSION OF LAW 1. The veteran's headaches are not proximately due to or the result of his service-connected tinnitus. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999). 2. The claim for the assignment of a rating in excess of 10 percent for the service-connected tinnitus must be denied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.2, 4.7, 4.87a including Diagnostic Code 6260 (1998); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.2, 4.7, 4.87 including Diagnostic Code 6260 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service connection for headaches As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the veteran's claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service medical records are entirely negative for any evidence of treatment for headaches. In fact, the first evidence that the veteran was suffering from headaches was not documented until many years following his separation from service. Indeed, the veteran's only contention in this regard is that his headaches are due to or aggravated by his service- connected tinnitus. A review of VA outpatient treatment reports submitted in support of the veteran's claim shows that, in June 1996, the veteran was treated for complaints of tinnitus, poor speech discrimination in noisy situations, hearing loss and headaches "which seem to be triggered by tinnitus." In July 1996, it was noted that the veteran's headaches had "resolved some." Subsequent entry dated in January 1997, indicated that the veteran was being followed for tinnitus and tension headaches. Shortly thereafter, a diagnostic impression of suspected labyrinthitis, rule out neuroma, was noted. According to the outpatient reports, the veteran received treatment for headaches once again in February 1998, at which time a diagnosis of chronic daily headaches and sleep disruption was rendered. The veteran was afforded a VA examination in July 1998. At that time, the veteran reported experiencing constant headaches, lasting in duration from two hours to almost all day. The veteran attributed the headaches to ringing in his ears, loud noises and stiffness in his neck and back. According to the veteran, the headaches worsened when the ringing in his ears and any outside noises intensified. He further stated that when he experienced these headaches, he became constantly nervous and fidgety. He reported taking pain medication for relief. Based on the examination, a diagnosis of headaches, tension or muscle contraction type, was rendered. The examining physician further noted that, in his opinion, the veteran's headaches were related to osteoarthritic changes in his cervical spine area, including some possible nerve root impingements demonstrated on MRI scan. He specifically stated that he found "no proof that the headache disability was caused or aggravated by the service-connected tinnitus." Based on a review of the evidence as a whole, the Board finds that the preponderance of the evidence is against the veteran's claim that his headaches are caused or aggravated by his service-connected tinnitus. In doing so, the Board finds most persuasive the opinion of the physician who examined the veteran in July 1998 on behalf of VA and concluded that the veteran's headache condition was due to osteoarthritic changes in the cervical spine area, including some possible nerve root impingements. In light of the evidentiary record now before the Board, the Board finds that the preponderance of the evidence is against the claim of service connection for headaches. II. Increased rating for tinnitus As a preliminary matter, the Board finds that the veteran's claim for increased compensation benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The Court has also stated that 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. Francisco v. Brown, 7 Vet.App. 55 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 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. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Regulations require that where there is a question as to which of two evaluations is to 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. The veteran's service-connected tinnitus is currently rated 10 percent disabling under the criteria contained in 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998), for persistent tinnitus as a symptom of head injury, concussion or acoustic trauma. This is the maximum evaluation available under that Code. Effective on June 10, 1999, the rating schedule criteria for evaluating hearing impairment and other diseases of the ear were changed. Under the new criteria, a 10 percent rating is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260 (1999). This is also the maximum evaluation available under that Code. The Court has held that "where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant generally applies." White v. Derwinski, 1 Vet. App. 519, 521 (1991). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the veteran is receiving the maximum disability evaluation provided by the Rating Schedule for this condition under both the old and the new criteria, thus, an increased schedular rating is not possible. Consequently, although the RO did not consider the change in regulation, the Board concludes that this is not prejudicial as the change in regulation has no effect on the outcome of the veteran's claim. See Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board finds, therefore, that this decision is not prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As noted hereinabove, the veteran was afforded an examination for VA purposes in July 1998. As of the date of the examination, the veteran was employed as a telephone operator and also metered mail. It was further noted that a physician at the VA hospital had recommended that he change jobs to accommodate the problems he was experiencing due to his tinnitus, ear problems and headaches. This opinion is documented in VA outpatient treatment reports submitted in support of the veteran's claim. At an audiological examination also performed in July 1998, the veteran was noted to be complaining of "a lot of ringing in his ears with abnormal noises." In an addendum to this examination dated in July 1999, the examining physician noted that the veteran's tinnitus was an entirely subjective symptom with no objective form of measurement available to confirm its presence or cause. Based on a review of the evidence as a whole, the Board finds that the record does not reveal that the veteran's service- connected tinnitus causes him unusual or exceptional hardship such as to warrant application of 38 C.F.R. § 3.321(b)(1). 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, then an extraschedular evaluation will be assigned. The Board notes that there is no indication that the schedular criteria are inadequate for the purpose of evaluating the veteran's service-connected tinnitus, since there has been no showing that this condition has caused marked interference with his employment (i.e., beyond that contemplated in the assigned evaluation), or necessitated frequent periods of hospitalization, or that his tinnitus otherwise has rendered impracticable the application of the regular schedular standards. While tinnitus appears to play a role in his overall hearing difficulty, it does not appear that tinnitus alone causes him unusual hardship as to warrant a separate rating on an extraschedular basis. As evidence has not been presented to show that the veteran's current disability picture is not adequately compensated by the actual provisions of the rating schedule, the Board finds that consideration under the provisions of 38 C.F.R. § 3.321 is not appropriate. ORDER Secondary service connection for headaches is denied. The claim for an increased rating for the service-connected tinnitus is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals