TINNITUS

A. S. CARACCIOLO · 2025 · Case ID: A25087974

MIXED

Summary

The veteran, who served from May 1976 to September 1995, appeals the denial of an increased disability rating for tinnitus and the initial grant of service connection for bilateral hearing loss. The veteran contended that his tinnitus warranted a higher rating than the maximum 10 percent schedular rating already awarded. The Board found that the veteran was already receiving the maximum rating for tinnitus and that no worsening of symptoms occurred within the relevant period, thus denying the increased rating claim as a matter of law. Regarding bilateral hearing loss, the veteran argued it was secondary to his service-connected tinnitus. The Board noted that a December 2024 rating decision had already granted service connection for bilateral hearing loss, finding it directly related to service. Although this decision was made after the Board appeal period, the Board reviewed the evidence and agreed with the favorable findings, granting service connection for bilateral hearing loss. The Board applied the benefit-of-the-doubt doctrine to the hearing loss claim, finding the evidence persuasive in support of service connection.

Rationale

Veteran already receiving maximum schedular rating for tinnitus.; No evidence of worsening symptoms within the relevant period.; No higher rating legally available for tinnitus.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6260

Docket No.

240813-463611

Full Decision Text

Citation Nr: A25087974
Decision Date: 10/10/25 Archive Date: 10/10/25

DOCKET NO. 240813-463611
DATE: October 10, 2025

ORDER

Entitlement to an increased disability rating for tinnitus is denied.

Entitlement to service connection for bilateral hearing loss is granted.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran is in receipt of the maximum schedular disability rating of 10 percent for tinnitus.

2. The persuasive weight of the evidence supports a finding that the Veteran has a current bilateral hearing loss disability which was proximately related to his active service.

CONCLUSIONS OF LAW

1. The Veteran is in receipt of the maximum schedular rating of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 4.87, Diagnostic Code 6260.

2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from May 1976 to September 1995.

This matter is on appeal from an August 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which adjudicated the issues based on the evidence of record at the time of the decision. The Veteran requested higher level review of this claim in September 2023 through the submission of a VA Form 20-0996. The Veteran's claim was then denied in a January 2024 rating decision.

The Veteran subsequently filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) in August 2024 in which the Veteran elected the Evidence Submission option. Accordingly, this decision has been written consistent with the Appeals Modernization Act (AMA) framework.

In this case, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, which is dated August 28, 2023, and which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303.

If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in its decision. Id. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id.

1. Entitlement to an increased disability rating for tinnitus.

The Veteran contends that he is entitled to an increased disability rating in excess of 10 percent for his service-connected tinnitus. The Veteran was granted service connection for tinnitus in a January 1996 rating decision with an initial noncompensable disability rating effective October 1, 1995. See January 1996 Rating Decision (e.g. VA Form 21-6796). In August 2023 the Veteran submitted a claim which asserted entitlement to an increased disability rating for his tinnitus. See August 2023 VA 21-526EZ, Fully Developed Claim (Compensation). Thereafter, following a review of the evidence, the August 2023 rating decision on appeal awarded an increased 10 percent disability rating for the Veteran's tinnitus, effective August 8, 2023. See August 2023 Rating Decision - Narrative.

Where, as here, service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Only a single evaluation may be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head.
Narrative.

Only a single evaluation may be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. See 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). From August 8, 2023, the date of the Veteran's claim of entitlement to an increased disability rating, the Veteran is in receipt of a 10 percent disability rating for the service-connected tinnitus under Diagnostic Code 6260, which is the maximum schedular disability rating available. See August 2023 Rating Decision - Narrative. Moreover, the Veteran has not alleged, and the evidence of record does not show, a factually ascertainable worsening of the Veteran's symptoms within the one-year period prior to the Veteran's August 8, 2023, claim of entitlement to an increased disability rating for his tinnitus. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010).

While the Board acknowledges the Veteran's tinnitus symptoms and the effect they have on him, he is already receiving the maximum rating available for tinnitus. No higher rating is legally available. As a higher schedular disability rating is not possible under the VA rating schedule, the appeal as to this issue must be denied as a matter of law. See 38 U.S.C. § 7104 (providing that the Board only decides actual case questions of fact or law). The Veteran has not raised any other issues, to include entitlement to an extraschedular rating for this condition, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

The Board has also considered the potential of other applicable diagnostic codes. However, in Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which explicitly pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). As the Veteran is service-connected for tinnitus, which is specifically addressed under Diagnostic Code 6260, it is therefore not appropriate to consider any alternate code sections.

Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 10 percent for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the persuasive weight of the evidence is against the Veteran's claims of entitlement to an increased rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to service connection for bilateral hearing loss.

The Veteran contends that he is entitled to service connection for bilateral hearing loss. Specifically, the Veteran has argued that he was entitled to service connection for bilateral hearing loss as a secondary result of his service-connected tinnitus. See September 2023 VA Form 20-0996 Request for Higher-Level Review; August 2024 VA Form 10182 Notice of Disagreement; October 2024 VA 21-526 Veterans Application for Compensation or Pension; November 2024 VA Form 20-0995 Supplemental Claim Application; November 2024 VA 21-4138 Statement in Support of Claim.

Initially, the Board notes that following the Veteran's August 2024 appeal to
itlement to service connection for bilateral hearing loss.

Initially, the Board notes that following the Veteran's August 2024 appeal to the Board, a December 2024 rating decision awarded the Veteran entitlement to service connection for his bilateral hearing loss, effective November 12, 2024. See December 2024 Rating Decision - Narrative. However, as the present appeal may entitle the Veteran to additional benefits, including the possibility of an earlier effective date, this matter remains in appellate status. See Johnson v. Collins, 38 Vet. App. 151 (2025); Concepcion-Maldonado v. Collins, 2025 U.S. Vet. Claims LEXIS 857 (June 23, 2025).

Additionally, the Board notes that the September 2023 request for higher-level review and the December 2024 rating decision were associated with the Veteran's claims file during a period of time when additional evidence was not allowed. See 38 C.F.R. § 20.303. However, "[e]vidence is defined as '[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact." Aviles-Rivera v. McDonough, 35 Vet. App. 268, 277 (2022) (quoting BLACK'S LAW DICTIONARY (11th ed. 2019)). A VA decision represents VA's determination as to the correct facts of a case and the application of law to those facts. A VA decision, therefore, is not evidence. See generally Green v. McDonough, 37 Vet. App. 127 (2024). Moreover, legal arguments, such as those presented in the September 2023 correspondence, are therefore not evidence. See generally Harvey v. Shulkin, 30 Vet. App. 10 (2018). Furthermore, there are no restrictions on the submission of argument.

Under 38 C.F.R. § 3.155(d)(2) the Board is required to address the claimed secondary complications of service-connected disabilities in appeals for increased ratings. See 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 a formally initiated claim for the proper evaluation level for the primary service-connected disability). Significantly, the Veteran 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).

As noted above, the Veteran repeatedly raised the issue of his entitlement to service connection for bilateral hearing loss as a related claim secondary to his service-connected tinnitus. See September 2023 VA Form 20-0996 Request for Higher-Level Review; August 2024 VA Form 10182 Notice of Disagreement; October 2024 VA 21-526 Veterans Application for Compensation or Pension; November 2024 VA Form 20-0995 Supplemental Claim Application; November 2024 VA 21-4138 Statement in Support of Claim. Thus, the issue of entitlement to service connection for bilateral hearing loss was raised by the record as a secondary complication of the service-connected tinnitus for which an increased rating was sought and must therefore be addressed. See Bailey, 33 Vet. App. at 203; Grimes, 34 Vet. App. at 84. To that end, the Board has carefully reviewed the evidence of record and finds that the persuasive weight of the evidence is in support of a finding that the Veteran's bilateral hearing loss was proximately due to his active service. The reasons follow.

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In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or
end, the Board has carefully reviewed the evidence of record and finds that the persuasive weight of the evidence is in support of a finding that the Veteran's bilateral hearing loss was proximately due to his active service. The reasons follow.

(Continued on the next page)

In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

In the December 2024 rating decision discussed above, the AOJ made favorable findings that the Veteran had been diagnosed with bilateral hearing loss which was "directly related to [the Veteran's] military service." December 2024 Rating Decision - Narrative. The Board may not now disturb these favorable findings. See 38 C.F.R. §§ 3.104(c), 20.801(a). The Board therefore also finds that the persuasive weight of the evidence is in support of a finding that the Veteran's bilateral hearing loss was a current disability which was proximately related to his active service. See Holton, 557 F.3d at 1366. Accordingly, entitlement to service connection is granted.

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Doyle, Stephan C.

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.

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