TINNITUS

Summary

The Veteran, an Army Veteran who served from November 1986 to November 1989, appeals the denial of service connection for tinnitus and seeks service connection for diabetes mellitus, headaches, hypertension, sleep apnea, and acquired psychiatric disorders. The Board denied the tinnitus claim, finding that the Veteran had already been assigned the maximum schedular rating of 10 percent for tinnitus under Diagnostic Code 6260, citing Federal Circuit precedent that limits a veteran to a single rating for tinnitus. The Board remanded the claims for diabetes mellitus, headaches, hypertension, sleep apnea, and acquired psychiatric disorders. The remand is necessary because the agency of original jurisdiction (AOJ) failed to obtain the Veteran's Social Security Administration (SSA) disability records, which were available prior to the AOJ's decisions and are considered constructively part of the VA record. The AOJ must now obtain these SSA records, including the claim, decisions, and any medical records, to properly adjudicate these remanded claims.

Rationale

Maximum schedular rating for tinnitus is 10 percent per DC 6260; Federal Circuit precedent (Smith v. Nicholson) supports single rating limit; No legal basis for rating in excess of 10 percent

Full Decision Text

Citation Nr: A26040474
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 260213-642344
DATE: April 30, 2026

ORDER

Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.

REMANDED

Entitlement to service connection for diabetes mellitus is remanded.

Entitlement to service connection for a headache disability is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder and bipolar disorder, is remanded.

FINDING OF FACT

The Veteran's tinnitus has been assigned the maximum disability rating allowed under VA regulations.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.87, DC 6260.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1986 to November 1989.

This matter comes before the Board of Veterans' Appeals on appeal from three separate rating decisions. In an April 2025 rating decision, the agency of original jurisdiction (AOJ) granted service connection for tinnitus and assigned an initial disability rating of 10 percent. In a June 2025 rating decision responding to the Veteran's request for higher-level review (HLR), the AOJ found a developmental error in the Veteran's claims for service connection for diabetes mellitus, headaches, hypertension, and sleep apnea, and accordingly adjudicated the claims under the supplemental review lane. However, the AOJ again denied the claims on the merits. In a February 2026 supplemental claim rating decision pertaining to the Veteran's claims for service connection for acquired psychiatric disorders, the AOJ found that new and relevant evidence had been received for both claims but again denied the claims on the merits.

In the February 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decisions outlined above, as they pertain to their specific issues. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

Pursuant to 38 C.F.R. § 20.202(c)(2), an appellant may modify a Notice of Disagreement to change the Board docket being requested. The time limit for such modification is "within one year from the date that the AOJ mails notice of the decision on appeal, or within 60 days of the date that the Board receives the Notice of Disagreement, whichever is later." See 38 C.F.R. § 20.202(c)(2). "[T]he Board ordinarily may not decide an appeal before this time period is up." See Williams v. McDonough, 37 Vet. App. 305 (2024). In this case, however, the Veteran submitted a Williams waiver form in February 2026. Therefore, the Board may proceed with adjudication of the matter.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims captioned above, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

1. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.

The Veteran has been assigned a 10 percent rating for tinnitus pursuant to 38 C.F.R. § 4.87, DC 6260 (recurrent tinnitus), which provides a maximum 10 percent evaluation for the disability. Note (2) states that a single evaluation for recurrent tinnitus is to be assigned, whether t
 are included with this decision. 

However, because the Board is remanding the claims captioned above, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

1. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.

The Veteran has been assigned a 10 percent rating for tinnitus pursuant to 38 C.F.R. § 4.87, DC 6260 (recurrent tinnitus), which provides a maximum 10 percent evaluation for the disability. Note (2) states that a single evaluation for recurrent tinnitus is to be assigned, whether tinnitus is present in one or both ears. Id. A higher evaluation for tinnitus is not available.

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and DC 6260, which limit a Veteran to a single schedular disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.

Consequently, the Veteran's tinnitus has already been assigned the maximum schedular rating available and there is no legal basis upon which to award a rating in excess of 10 percent. 38 C.F.R. § 4.87, DC 6260. Accordingly, the Veteran's claim for a rating in excess of 10 percent for tinnitus on a schedular basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

REASONS FOR REMAND

1. Entitlement to service connection for diabetes mellitus is remanded.

2. Entitlement to service connection for a headache disability is remanded.

3. Entitlement to service connection for hypertension is remanded.

4. Entitlement to service connection for sleep apnea is remanded.

5. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder and bipolar disorder, is remanded.

In April 2025, prior to the issuance of the rating decisions on appeal, VA performed a Social Security Administration (SSA) inquiry, which revealed that the Veteran was determined to have a disability by SSA since August 2015 and that he has been entitled to benefits since February 2016. See April 2025 SSA Profile and Benefit Data, p. 2. However, the claims file does not contain any SSA files or indicate that VA has attempted to obtain such files.

The Board notes that SSA records are federal records that are considered constructively of the VA record, and therefore medical records considered in connection with an SSA disability determination must be sought. See 38 C.F.R. § 3.159(c)(2); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). As the evidence indicating receipt of SSA benefits by the Veteran was of record prior to issuance of the rating decisions on appeal, the matter must be remanded to obtain such records.

The matters are REMANDED for the following action:

Conduct the appropriate development to obtain and associate with the claims file the Veteran's relevant SSA disability benefits records, to include the claim, any decisions, and any medical records. All requests for records and their responses should be clearly documented in the claims file. 

 

John R. Doolittle, II

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Watkins, 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.