Citation Nr: 20003442 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 16-36 275 DATE: January 15, 2020 ORDER An initial compensable rating for hearing loss is denied. An initial rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for degenerative disc disease (DDD) of the lumbar spine. Service connection for a right shoulder disorder. Service connection for a neck disorder. Service connection for a stomach disorder. Service connection for body lumps. Service connection for headaches, to include as secondary to tinnitus. Service connection for temporomandibular joint (TMJ). An initial rating in excess of 10 percent for left knee meniscal tear. Higher initial ratings for degenerative joint disease (DJD) of the left hip. A total disability based on individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran has Level III hearing loss bilaterally. 2. The Veteran is currently in receipt of the highest schedular rating for tinnitus. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. 2. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to May 1983. The case is on appeal from an October 2013 rating decision. Additional evidence was received subsequent to the statement of the case issued in May 2016. As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. An initial compensable rating for hearing loss Legal Criteria Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In the case of the latter pattern of exceptional hearing, the numeral derived from Table VI or Table VIA will then be elevated to the next higher numeral. Analysis The Veteran claims that his current noncompensable rating for hearing loss does not reflect the severity of his symptoms. The Veteran was afforded a VA examination of his hearing loss in March 2013, at which time pure tone threshold testing revealed the following: HERTZ 1000 2000 3000 4000 Right 20 25 30 50 Left 20 25 40 55 This results in an average pure tone threshold of 31.25 dB in the right ear and 35 dB in the left ear. Word recognition scores were 80 percent bilaterally. The Veteran reported functional impact as difficulty hearing the television, radio, and when in groups and crowds. The Veteran’s hearing loss does not warrant a compensable rating. Under Table VI, this results in Level III hearing loss bilaterally, which warrants a noncompensable rating. The Veteran’s functional limitations are confined to difficulty hearing, which is contemplated by the rating code. Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (2017). Therefore, a higher rating for hearing loss is denied. The Board acknowledges that there are outstanding Social Security Administration (SSA) records; however, as the Veteran has not indicated any additional audiology testing or disabling effects other than difficulty hearing, there is no reasonable possibility that obtaining SSA records would unveil beneficial evidence to the Veteran’s claim for a higher hearing loss rating. 38 C.F.R. § 3.159(d). 2. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran claims that his current 10 percent rating for tinnitus does not accurately reflect the severity of his symptoms. Tinnitus is rated under 38 C.F.R. § 4.87, DC 6260, which provides for a 10 percent rating for recurrent tinnitus, whether tinnitus occurs in one ear or both. See also Smith v. Nicholson, 19 Vet. App. 63 (2005). On VA examination conducted in March 2013, the Veteran reported having recurrent tinnitus. The Veteran is currently in receipt of a 10 percent rating for tinnitus, and no higher schedular rating is available. Functional limitations include headaches that the Veteran contends are caused by tinnitus. The Board is remanding a claim of service connection for headaches to further explore this theory of entitlement. At this time, without a medical opinion, no additional rating for headaches is warranted under 38 C.F.R. § 4.124a DC 8100. No other symptoms related to tinnitus were reported. The Board acknowledges that there are outstanding SSA records; however, as the Veteran is already in receipt of the maximum schedular rating and additional symptomatology may be service connected upon favorable medical opinion, there is no reasonable possibility that obtaining SSA records would unveil beneficial evidence to the Veteran’s claim for a higher tinnitus rating. 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for DDD of the lumbar spine. 2. Service connection for a right shoulder disorder. 3. Service connection for a neck disorder. 4. Service connection for a stomach disorder. 5. Service connection for body lumps. 6. Service connection for TMJ. The Veteran is in receipt of Social Security Disability Insurance (SSDI) payments. However, medical records from the SSA associated with an SSA decision are not of record. A remand is warranted to obtain these records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Below, for convenience, is a brief overview of the relevant evidence. With regard to the low back, at a March 2013 VA examination, the Veteran reported the onset of symptoms for a back condition as 1980 when he fell 6-7 feet off of a Houser and from daily ware when lifting 55-pound projectiles. More generally, in his August 2016 appeal to the Board, the Veteran claimed that his injuries were the result of a motor vehicle accident (MVA) during service. An October 2007 private treatment record from Dr. Gandhi reveals that low back pain onset six years prior, or in 2001. Chronic back pain is noted at a June 2012 private treatment record with Dr. Davis. An October 2012 VA treatment record reveals that the Veteran has a history of low back pain since a 2001 MVA. In March 2013, a VA examiner opined that the Veteran’s low back disorder was less likely than not related to service because there was no specific medical evidence to provide the cause of the Veteran’s low back disability. With regard to his neck and back disorders, in June 2002, imaging revealed a diagnosis of a herniated disc at C4-C5 and C5-C6. Rather, an October 2007 private treatment record indicates that right shoulder and neck pain were said to onset six years earlier, in relation a MVA and fall that occurred in 2001. VA treatment records from September 2012 note mild degenerative changes in the right shoulder. Again, as there are outstanding SSA records, a remand of all service connection claims are warranted. 7. Service connection for headaches, to include as secondary to tinnitus. At the March 2013 VA examination, the Veteran reported that, when he hears ringing in his ears from his service-connected tinnitus, he gets headaches. This report raises the theory of whether the Veteran’s headaches are at least as likely as not caused or aggravated by his tinnitus. See 38 C.F.R. § 3.310. A remand is, therefore warranted to address this theory. A VA examination of the Veteran’s headaches should also be conducted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. An initial rating in excess of 10 percent for left knee meniscal tear is remanded. 9. Higher initial ratings for DJD of the left hip. A remand for new VA examinations of the Veteran’s left knee and left hip disabilities is warranted. First, at the most recent May 2018 examinations, the examiner stated that no medical records were available for review. The Veteran should be afforded a VA examination at which the examiner is able to review the medical history of the Veteran’s disabilities. Second, at the May 2018 VA examinations of the left hip and left knee, flare-ups of the disability were reported. The Veteran reported flare-ups in the left knee productive of pain and inability to do daily activities and flare-ups and in the left hip as difficulty walking and standing due to pain. The examiner stated that an opinion on additional loss of range of motion could not be given without resort to mere speculation. The examiner explained that the Veteran was expected to have additional loss in range of motion when suffering from pain, that the loss in range of motion would depend on the activity and severity of the pain, and that the examination results may be suggestive of the range of motion during a flare-up. This opinion indicates some additional loss in range of motion would be expected but does not reveal a basis on which the Board can discern any additional loss of range of motion. Further, the rationale provided is very similar to that which the United States Court of Appeals for Veterans Claims rejected in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The earlier March 2013 VA examinations do not shed further light on this inquiry. Therefore, a remand is warranted for an examiner to consider the Veteran’s lay statements as to symptoms during a flare-up and opine as to additional functional limitation. 10. A TDIU. In September 2013, while the increased rating claims were pending before VA, the Veteran filed a claim for TDIU, in which he states that his current service-connected disabilities, the ratings for which are on appeal, have prevented him from working. Therefore, a claim of entitlement to TDIU is part and parcel of the increased rating claims now before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board will also remand this issue as intertwined with the rating issues remaining on appeal. The matters are REMANDED for the following action: 1. Obtain SSA medical records. 2. Thereafter, afford the Veteran a VA examination of his headaches and ask the examiner to opine as to whether it is at least as likely as not that the Veteran’s headaches were caused or aggravated by service-connected tinnitus. A complete rationale should be provided for any opinion rendered. Please note that the Veteran’s e lay statements that he experiences headaches that he believes is related to ringing in his ears. 3. Also, afford the Veteran VA examinations of his left knee and left hip. The examiner should review the entire claims file. As part of the examination, the examiner should opine as to the additional functional loss, in terms of range of motion of the Veteran’s left knee and left hip during a flare-up. The Veteran has reported that left knee flare-ups result in pain and inability to do daily activities and left hip flare-ups result in difficulty standing and walking. A complete rationale should be given for any opinion rendered, including a conclusion that an opinion cannot be given without resort to mere speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. George 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.