Citation Nr: 18148412 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-27 316 DATE: November 8, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to a rating in excess of 20 percent as of October 2009 for service connected lumbar strain is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity associated with lumbar strain. Entitlement to a rating in excess of 10 percent for femoral nerve involvement of the right lower extremity associated with lumbar strain. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity associated with lumbar strain. FINDING OF FACT The Veteran’s tinnitus is assigned the maximum available schedular rating. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for tinnitus disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 2008 to September 2009. He served during the Gulf War Era. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision for a tinnitus and lumbar strain claim by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, MA. By way of background, the Veteran was originally granted service connection for his lumbosacral strain and tinnitus in July 2010 at a compensable evaluation of 10 percent each, and in a July 2013 rating decision, the evaluation for the lumbosacral strain was increased to 20 percent effective October 14, 2011. The grant of an increased or additional rating for the same disability during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In the March 2018 Supplemental Statement of the Case, the RO includes the issues of entitlement to increased ratings for radiculopathy of the bilateral lower extremities and femoral nerve involvement to the right lower extremity. As the RO exercised jurisdiction over these issues as part of the rating for the lumbar spine disability, these issues are in appellate status. 1. Entitlement to a rating in excess of 10 percent for tinnitus disability Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. The schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can be practically determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran contends that he is entitled to a higher disability rating for service-connected tinnitus. The Veteran’s tinnitus is currently assigned a 10 percent rating under Diagnostic Code 6260, effective September 15, 2009. The Veteran seeks a higher rating. A 10 percent is the maximum available schedular rating for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). Thus, as the Veteran is in receipt of the maximum schedular rating for his tinnitus for the entire period on appeal, entitlement to a higher schedular rating is not warranted. As a result, the claim must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced tinnitus symptoms outside of those listed in the schedular criteria. See Ducette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. App. 1004 (Fed. Cir. 2007)). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for service connected lumbar strain and ratings in excess of 10 percent each for bilateral radiculopathy of the lower extremities and femoral nerve involvement of the right lower extremity associated with lumbar strain are remanded. The Veteran contends that he is entitled to an evaluation rating in excess of 20 percent for his lumbosacral strain disability, which is currently rated under 38 C.F.R § 4.71a, Diagnostic Code 5237. In his March 2018 VA Form 21-526EZ, the Veteran reported that his symptoms have worsened since the rating was assigned. In March 2018, the VA issued the most recent Supplemental Statement of the Case (SSOC) denying the Veteran’s claims to increase his lumbosacral strain rating. Thereafter, the Veteran was afforded a VA examination on July 2018 to evaluate his lumbosacral sprain, but the RO did not issue a second SSOC in response. Additionally, although the Veteran has been afforded two VA examinations for his lumbosacral sprain, March and July 2018, the Board finds that the relevant reports did not contain all of the required findings. Neither examination report indicated at which point during range of motion testing the Veteran’s motion is limited by pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran complained of flare-ups, indicated pain increases with any prolonged or repetitive back functional activity, such as bending, lifting, squatting or twisting (See July examination report). The July 2018 examiner opined as to functional loss during flare-ups but was not able to describe, without high level of speculation, in terms of range of motion whether pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability. Therefore, the Board finds that a new examination is warranted for an opinion regarding the Veteran’s flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The matter is REMANDED for the following action: 1. Schedule the Veteran to undergo a VA examination with an appropriate physician to assess the current manifestations and severity of the Veteran’s lumbosacral strain disability. The examiner must review the Veteran’s claim file and elicit a full history from the Veteran regarding his symptoms of lumbar strain disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should record the range of motion of the back observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion (ROM) at which such pain begins, as well as whether such pain on movement results in any loss of ROM. The examiner should record the results of ROM testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner should indicate whether there is ankylosis of the spine. The examiner should comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's ROM is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. With specific regard to flare-ups, if the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner should make clear that all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran) was considered, but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should report whether the Veteran has any associated neurological impairments, to include any radiculopathy to the lower extremities, and, if so, comment on the severity of such disorder. The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel