Citation Nr: 21000423 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-67 605 DATE: January 5, 2021 ORDER A compensable rating for sinusitis is denied. A rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is denied. A rating in excess of 20 percent for degenerative joint disease (DJD) of the lumbar and thoracic spine is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. A total disability rating based on individual unemployability (TDIU) from September 3, 2013, to November 13, 2019, is granted, subject to the laws and regulations governing the award of monetary benefits. The claim for a TDIU from November 14, 2019 forward is moot. REMANDED The claim for service connection for a headache disorder is remanded. The claim for service connection for a neck disability is remanded. The claim for service connection for a left shoulder disability is remanded. The claim for service connection for a right shoulder disability is remanded. The claim for service connection for a left knee disability is remanded. The claim for service connection for a right knee disability is remanded. The claim for a TDIU prior to September 3, 2013, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran’s sinusitis has not been shown to have been manifested by one or two incapacitating episodes per year requiring prolonged (four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting or by manifestations approximating such level of severity. 2. The Veteran’s GERD has not produced symptoms of vomiting, material weight loss, and hematemesis or melena with moderate anemia. Additionally, the Veteran’s disability has not produced any other combinations of symptoms productive of severe impairment of health. 3. During the period on appeal, the Veteran’s DJD of the lumbar and thoracic spine did not manifest with forward flexion of the thoracolumbar spine functionally limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 4. The evidence is insufficient to show that the Veteran has a current hearing loss disability in either ear for VA purposes. 5. The Veteran began experiencing symptoms of tinnitus while in service, and he has continued to experience them since separation from service. 6. From September 3, 2013, to November 13, 2019, the evidence of record demonstrates that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. 7. In light of the assignment of a schedular 100 percent combined total disability rating extending from November 14, 2019, the Veteran’s claim for a TDIU is rendered moot as of that date. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for sinusitis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.97, Diagnostic Code 6510. 2. The criteria for a disability rating in excess of 30 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.114, Diagnostic Codes 7399-7346. 3. The criteria for a rating in excess of 20 percent for DJD of the lumbar and thoracic spines have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.71a, Diagnostic Codes 5010-5237. 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 6. From September 3, 2013, to November 13, 2019, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. 7. For the period from November 14, 2019, the claim for a TDIU rating is moot. 38 U.S.C. § 7105; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to January 1995. This matter was previously remanded by the Board for additional development in May 2019. The requested development has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). However, additional development is warranted for the issues of entitlement to service connection for a neck disability, a left shoulder disability, a right shoulder disability, a left knee disability, a right knee disability, and headaches. These issues will be discussed in the REMAND portion of this decision below. The issue of entitlement to service connection for gout was also remanded in May 2019. Following the remand, the April 2020 rating decision granted service connection for gout. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating 1. A compensable rating for sinusitis The Veteran contends that he is entitled to a compensable rating for his sinusitis due to the severity of his symptoms. In September 2018, the Veteran submitted an evaluation completed by a private physician indicating that the Veteran suffered from headaches “pretty much constantly” that were likely associated with his sinusitis. A zero percent or noncompensable evaluation for chronic pansinusitis sinusitis, under 38 C.F.R. § 4.97, Diagnostic Code 6510, is available where it is detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Even higher ratings are available for greater degrees of symptomatology. The Veteran was afforded a VA examination in June 2014 where he stated he had constant post-nasal drip from his sinus inflammation and polyp conditions and irritated his throat. He stated he took antihistamines and a steroid inhaler with no relief of his symptoms. The Veteran’s symptoms included headaches and post-nasal drip, with blurry vision. There was no pain of affected sinus, purulent discharge, or crusting. The Veteran had not had any incapacitating or non-incapacitating episodes of sinusitis in the last 12 months. There was no history of sinus surgery. Pursuant to the May 2019 Board remand, the Veteran was afforded a VA examination for his sinusitis in November 2019. According to the VA examination report, the Veteran reported that he experienced chronic congestion and post-nasal drip. He also experienced headaches once or twice a week. Imaging studies revealed left ethmoid disease and left maxillary mucoperiosteal thickening. Despite the Veteran’s reports of headaches, there was no pain of affected sinus, purulent discharge, or crusting noted on the physical examination. The Veteran had not had any incapacitating or non-incapacitating episodes of sinusitis in the last 12 months. There is no evidence that treatment of the Veteran’s condition had required prolonged (4 to 6 weeks) of antibiotic treatment over the past 12 months. VA and private treatment records during this appeal also have not shown any incapacitating or non-incapacitating episodes of sinusitis. Having reviewed the evidence of record, the Board finds that a compensable rating for sinusitis is not warranted. As noted above, under Diagnostic Code 6510 a 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The evidence of record during the period of appeal does not support this finding. Therefore, a compensable rating for sinusitis is not warranted. 38 C.F.R. § 4.97, Diagnostic Code 6510. The Board has considered whether separate and/or higher disability ratings are warranted under any other potentially applicable Diagnostic Codes pertaining to diseases of the ear, nose, and throat. The Veteran did not have at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation or complete obstruction on one side due to traumatic septal deviation related to his condition. Also, he did not have scars relate to his condition. Therefore, a separate rating is not warranted under Diagnostic Codes 6502 or 6504. Additionally, the Veteran did not have vocal cord paralysis or any other pharyngeal or laryngeal conditions. Therefore, a higher and/or separate rating is not warranted under Diagnostic Codes 6515-6521. Additionally, it is noted that the Veteran is pursuing a separate rating for headaches, which is addressed on remand. 2. A rating in excess of 30 percent for GERD The Veteran contends that he is entitled to a higher disability rating for his GERD due to the severity of his symptoms. Specifically, a February 2016 VA ambulatory care note indicates increased hoarseness following a recent clinical procedure. In addition, the clinical note also indicates that the results from an August 2014 colonoscopy revealed potentially worsening gastrointestinal symptoms, to include a small colon polyp, diverticulitis, and small internal hemorrhoids The Veteran’s current disability rating of 30 percent was assigned pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. Here, 7399 refers to disabilities of the digestive system, while 7346 refers to the diagnostic code for hiatal hernia. GERD is not listed in the rating schedule, while hiatal hernia is listed under Diagnostic Code 7346. In this case, the Board finds the use of the hyphenated Diagnostic Code 7399-7346 to be appropriate as the Veteran’s GERD symptoms are more closely captured by those listed under Diagnostic Code 7346. Pursuant to Diagnostic Code 7346, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Comparatively, a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. According to the June 2014 VA examination, the Veteran stated that since his last VA examination he had experienced increased epigastric pain and reflux aggravated by certain foods and drinks. He stated that when he laid flat, he had regurgitation of food and needed to sleep in an upright position. He further reported his voice was hoarse from the reflux. The Veteran’s symptoms included persistent recurrent epigastric distress, reflux, regurgitation, substernal pain, and sleep disturbances caused by esophageal reflux occurring 4 or more times a year with a duration of less than one day. There was no esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The Veteran was afforded a new VA examination in November 2019 where he stated he had intermittent epigastric pain, reflux with nausea, and vomiting. He stated he took Omeprazole twice daily and Tums and Rolaids as needed for his GERD. The Veteran’s symptoms were felt by the examiner to be productive of considerable impairment of health; persistently recurrent epigastric distress; pyrosis; reflux; regurgitation; substernal pain; sleep disturbance caused by esophageal reflux occurring 4 or more times a year lasting less than a day; nausea occurring 4 or more episodes a year lasting less than a day; and vomiting occurring 4 or more times a year lasting less than a day. Overall, after careful review of the evidence of record, the Board finds that the Veteran’s GERD symptoms are adequately contemplated by the ratings assigned under Diagnostic Code 7346. The Board finds that the Veteran has reported vomiting, he has not displayed material weight loss, and hematemesis or melena with moderate anemia throughout the period of appeal. Further, the Veteran’s service-connected GERD has not been shown to have produced any other combinations of symptoms that would be considered to be productive of severe impairment of health. For these reasons, the Board cannot assign a disability rating in excess of 30 percent pursuant to Diagnostic Code 7399-7346. As the clinical records and reports of VA examinations are absent findings consistent with the criteria for a higher 60 percent rating, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 30 percent pursuant to Diagnostic Code 7399-7346. As such, the Board must deny the claim. 3. A rating in excess of 20 percent for DJD of the lumbar and thoracic spine The Veteran has claimed that the current 20 percent disability rating does not accurately reflect the current severity of his service-connected low back disability. The Veteran’s lumbar disability is rated under Diagnostic Code 5237 and is rated using the General Rating Formula for Diseases and Injuries of the Spine. Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week, but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS. The June 2014 and November 2019 VA examination reports indicated that the Veteran did not have IVDS. Moreover, there is no evidence showing that the Veteran has ever been prescribed bed rest by a medical professional to treat his back disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s thoracic spine disability and lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Veteran was afforded a VA examination in June 2014 at which a diagnosis of DJD of the lumbar spine was confirmed. The Veteran stated he had increased constant back pain measured at a 4 on a scale of 10. He stated it was aggravated by prolonged walking, standing, and sitting which the pain was an 8 to 9 out of 10. The Veteran stated he rested, changed positions, stretched, used hot applications, topical creams, and Biofreeze to help alleviate the pain. The Veteran stated he was prescribed hydrocodone/apap, muscle relaxants and tramadol. He took them monthly to help alleviate the pain with temporary relief. The Veteran denied any new injury, surgery, and physical therapy for his back condition since his last VA examination. He also had flare ups that impacted the function of the thoracolumbar spine. The Veteran stated his flare-ups made him unable to do any physical activity and had ot lay down and rest. Range of motion testing revealed forward flexion at 50 degrees with pain and extension at 20 degrees with pain. Repetitive use testing revealed post-test forward flexion at 50 degrees and post-test extension at 20 degrees. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The Veteran did have functional loss and/or functional impairment of the thoracolumbar spine due to less movement than normal, pain on movement, and interference with sitting, standing and/or weight/bearing. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine described as lumbar joint pain to palpation. The Veteran did not have muscle spasms or guarding of the thoracolumbar spine resulting in an abnormal gait or abnormal spinal contour. There was no evidence of ankylosis. Imaging studies of the thoracolumbar spine revealed arthritis and without thoracic vertebral fracture with loss of 50 percent or more of height. Furthermore, the VA examiner determined that the Veteran’s low back disability impacted his ability to do physically demanding jobs with prolonged standing, walking, and lifting. He would be able to do sedentary jobs with restrictions and need frequent breaks to change position. According to the November 2019 VA examination report, the Veteran reported constant pain in the lower back that was sharp with shooting pain with numbness and tingling down bilateral legs. The pain was described as a 5 to 8 out of ten. He stated he was treated with Ibuprofen, spinal injections, acupuncture, ice and heat, and Percocet or Vicodin as need for spinal arthritis, degenerative disc disease, and radiculopathy of the lower extremity. The Veteran reported daily flare-ups with prolonged sitting, standing, or walking, pain was an 8 or 9 out of 10, and lasted hours at a time. The Veteran reported having functional loss or functional impairment with prolonged sitting, standing, walking, and with bending and lifting. Range of motion testing revealed forward flexion at 70 degrees, and extension at 20 degrees. The range of motion contributed to functional loss of limited ability to bend and extend. The pain was noted on examination and caused functional loss with forward flexion and extension. The was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine described as tenderness in the lumbar to sacral spine, severity was a 6 out of 10, and was directly related to degenerative disc disease and spinal arthritis. The Veteran was able to perform repetitive-use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time and the examiner noted the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The VA examination was not being conducted during a flare up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. The VA examiner noted that upon review of the Veteran’s records, a physical examination, reported history and subjective complaints, and the examiner’s medical knowledge and expertise, there was no basis to offer additional losses of function or motion with repeated use over time or during a flare up. The Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Additional factors contributing to disability was disturbances of locomotion, interference with sitting, and interference with standing. There was no ankylosis of the spine. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s low back disability. Here, the medical evidence of record has not demonstrated limitation of motion for forward flexion of the thoracolumbar spine that is limited to 30 degrees or less; here, at worst, he showed forward flexion to 50 degrees, well in excess of the criteria for a 40 percent rating. The VA examiners reported that there was no ankylosis of the spine. Here, the weight of the evidence does not support findings consistent with a rating in excess of 20 percent. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran reported experiencing pain on range of motion testing. However, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Furthermore, the November 2019 VA examiner determined there was no basis to offer additional losses of function or motion with repeated use over time or during a flare up. To the degree that the Veteran has reported the need to change positions, the provisions of 38 C.F.R. § 4.45 (c) establish that pain resulting in interference with sitting, standing and weight-bearing is for consideration. In this regard, the Board notes that the rating criteria under Diagnostic Code 5237 specifically contemplate guarding as well as muscle spasm or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. As such, such symptoms do not establish a basis for an extraschedular evaluation. Regarding neurological impairment, as noted, the Veteran has already been granted service connection for associated radiculopathies and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for DJD of the lumbar and thoracic spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 4. Service connection for bilateral hearing loss The Veteran is seeking service connection for bilateral hearing loss, which he believes resulted from noise exposure he experienced in service. According to the Veteran’s DD 214, he was an Automated Logistical Specialist, who was awarded an expert marksmanship badge for rifle M-16, and expert marksmanship badge for grenade. Therefore, the Veteran’s reports of military noise exposure are credible as they are consistent with his military occupational specialty. Noise exposure during service is conceded. However, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused hearing loss for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R.§3.385. Service treatment records are absent of complaints, treatment, or diagnosis of hearing loss. In addition, February 1991 and June 1992 audiograms, as well as the Report of Medical Examination, did not indicate a findings of hearing loss. On the authorized VA audiologic evaluation for rating purposes, in November 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 25 LEFT 10 15 20 25 25 Speech audiometry revealed speech recognition ability of 94 in the right and left ears. Here, the medical evidence of record reflects that the Veteran does not have a hearing disability in the right ear for VA purposes because his auditory thresholds in frequencies in the 500-4000 Hz range are lower than 40 decibels and his Maryland CNC Test score is not less than 94 percent in either ear. Additionally, the decibel loss at three frequencies was not 26 or above. The Board finds that the evidence of record shows that the Veteran does not have a hearing loss disability in either ear as defined by VA regulations. See 38 C.F.R. § 3.385 Upon review of the record, the Board acknowledges the Veteran’s lay statements of hearing loss, noise exposure during his military service, and the findings of the post-service treatment records to include the November 2019 VA examination. The above evidence does not establish hearing loss in either ear to the extent recognized as a disability for VA purposes, and the Veteran has not alluded to the existence of any other evidence establishing a current bilateral hearing loss disability. Despite the Veteran’s competent and credible reports of in-service noise exposure, the determination of whether hearing loss constitutes a disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. §§ 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. The provisions of 38 C.F.R. §§ 3.385 do not authorize a finding of hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation. Therefore, although the Veteran has reported complaints of hearing loss, the Board is bound by the testing results and has no discretion in this regard. As such, the Veteran does not meet the VA requirements for hearing loss. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) Furthermore, although the Veteran is competent to report that he has diminished hearing, he is not competent to state that it meets the specific criteria as defined by VA regulations. While the Board recognizes the Veteran’s sincere belief in his bilateral hearing loss claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a hearing loss disability caused or aggravated by military service during any period of his appeal. Medical expertise is required to make such a determination as it involves audiological testing and charting of specific results; the Veteran has not asserted, and the record does not show, that he has such expertise. Accordingly, the most probative evidence of record demonstrates that there is no hearing loss for VA purposes. Accordingly, the appeal of the claim for service connection for bilateral hearing loss is denied. 5. Service connection for tinnitus The Veteran is seeking service connection for tinnitus, which he believes resulted from noise exposure he experienced during service. As stated above, the Board has conceded noise exposure during the Veteran’s military service. The Veteran was afforded a VA examination in November 2019 at which he reported beginning to experience tinnitus during his military service. Currently, the Veteran experienced constant bilateral hearing loss. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran has credibly reported the onset of tinnitus during service, which he has continuously noticed ever since. Accordingly, service connection for tinnitus is granted. TDIU A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16 (a). In calculating whether a Veteran meets that required schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16 (a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b); see 38 C.F.R. §§ 3.340, 3.341, 4.15. In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon a Veteran’s actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). From September 3, 2013, to November 13, 2019 The Veteran contends that the symptoms of his service-connected disabilities render him unable to maintain substantially gainful employment. The Veteran has been service connected for depressive disorder with anxious distress features assigned a 70 percent disability rating, effective September 3, 2013; gout assigned a 40 percent disability rating, effective September 3, 2013; GERD assigned a 10 percent disability rating, effective June 29, 2004, and a 30 percent disability rating, effective September 3, 2013; DJD of the thoracolumbar spine assigned a 10 percent disability rating ,effective January 13, 1995, and a 20 percent disability rating, effective November 15, 2011; arthritis of the right elbow assigned a noncompensable disability rating, effective January 13, 1995, and a 10 percent disability rating, effective November 15, 2011; hallux valgus of the left foot assigned a noncompensable disability rating, effective January 13, 1995, and a 10 percent disability rating, effective September 3, 2013; hallux valgus of the right foot assigned a noncompensable disability rating, effective January 13, 1995, and a 10 percent disability rating, effective September 3, 2013; radiculopathy of the left lower extremity associated with DJD of the thoracolumbar spine assigned a 10 percent disability rating, effective November 14, 2019; radiculopathy of the right lower extremity associated with DJD of the thoracolumbar spine assigned a 10 percent disability rating, effective November 14, 2019; sinusitis assigned a noncompensable disability rating, effective January 13, 1995; and excision of granuloma on the right true vocal cord assigned a noncompensable disability rating from January 13, 1995. The combined evaluation for compensation is at 10 percent from January 13, 1995; 20 percent from June 29, 2004; 40 percent from November 15, 2011; 90 percent from September 3, 2013; and 100 percent from November 14, 2019. The combined evaluation was 70 percent or higher, with at least one disability rated as 40 percent disabling has been met from September 3, 2013, to November 13, 2019. Thus, the Board finds that the Veteran has met the scheduler criteria during this period. Turning to the evidence of record, according to a Social Security Administration letter addressed to the Veteran, dated September 2015, it was determined that the Veteran became disabled under their rules in February 2002 and was entitled to monthly disability benefits starting in April 2012. The Veteran has also repeated stated that he became too disabled to work since 2002 as a result of his service-connected disabilities, specifically his depression and back disability. According to a September 2018 report from a private vocational expert, upon review of the evidence of record (including VA examination reports and the Social Security file) and an interview with the Veteran, it was opined that the Veteran’s service-connected disabilities “more likely than not contribute materially and substantially to his inability to sustain gainful work in any employment base. The private vocational expert agreed with the VA examination report’s that the Veteran’s back and elbow disabilities conclusion that the Veteran is unable to work in any physical capacity and that he would require considerable limitations and additional breaks in sedentary workplaces. However, the private vocational expert noted that the VA examination reports did not consider the additional complications pertaining to the Veteran’s service-connected psychological limitations “concerning significantly diminished concentration, easy irritability, poor social adaptability, lack of sleep and adequate energy, and substantially variable mood swings from one day to another, or even from one moment to another.” The Veteran would “certainly be expected to miss several days of work each week even in a part-time sedentary capacity even if afforded considerable accommodations based on his daily psychological and pain variability.” The Board finds that overall, the evidence tends to show that the Veteran would not be able to obtain or retain employment consistent with any past employment or education, as a result of the functional limitations caused by his service-connected disabilities. Accordingly, resolving doubt in the Veteran’s favor, a TDIU from September 3, 2013, to November 13, 2019, is granted. From November 14, 2019 As indicated above, the Board notes that the Veteran is in receipt of a 100 percent combined schedular rating as of November 14, 2019. A TDIU rating is contingent on the schedular rating being less than total. 38 C.F.R. § 4.16 (a). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to a TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114 (s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC. This case, however, is distinguished from Bradley in that the grant of the Veteran’s TDIU for the period from November 14, 2019, is not predicated on a single disability but is predicated on multiple service-connected disabilities. Therefore, this grant of TDIU is based on impairment from several service-connected disabilities, and not just a single disability. The Veteran does not assert, nor does the evidence show, that any single service-connected disability has rendered him unemployable. Thus, entitlement to a TDIU based upon any single service-connected disability from November 14, 2019, is not in order. Further, as the Veteran has no individual service-connected disability that is rated at 100 percent, and his TDIU is predicated on multiple service-connected disabilities, the percentage rating criteria for SMC at the housebound rate have not been met at any point during the period of time on appeal. Concerning both Bradley and Buie, in this case, the Veteran is currently service connected for multiple disabilities and has previously contended that the combination of these disabilities renders him unemployable. To award a TDIU rating for the period since November 14, 2019, (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. As neither Bradley nor Buie is applicable, the question of entitlement to a TDIU rating has been rendered moot by the 100 percent combined schedular disability rating for all service-connected disabilities that has been in effect from November 14, 2019, even before the rating period, so covers the entire rating period on appeal. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). The Board finds that there is no indication that any of his service-connected disabilities alone renders him unemployable. Hence, entitlement to TDIU is moot for the period beginning on November 14, 2019. See 38 U.S.C. § 1114 (s). REASONS FOR REMAND 1. Service connection for a headache disorder is remanded. The Veteran seeks service connection for a headache disorder. In May 2019, the Board determined that additional evidentiary development was needed to ascertain whether the Veteran has a headache disorder that is distinct from his service-connected sinusitis, and therefore a remand was necessary. The VA opinion was obtained in November 2019 where the VA examiner opined that the Veteran’s headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no evidence of a chronic headache disorder documented in the claims file and that the headaches were acute. The headaches were distinct from the service-connected sinusitis and were unrelated to service was there was no chronicity of care. The Board finds this opinion is inadequate as there is no competent medical opinion evidence supporting the notion of secondary service connection, particularly as caused and/or aggravated by service-connected sinusitis. Therefore, a new etiological opinion is warranted. 2. Service connection claims for neck, shoulder, and knee disabilities are remanded. The Veteran is seeking service connection for a neck disability, a left shoulder disability, a right shoulder disability, a left knee disability, and a right knee disability which he believes are the result of his service-connected gout. The Veteran’s VA medical records reflect that he has been seen for painful joints during the appeal period; these symptoms have often been attributed to flare-ups of gout. Notably, the record reflects that in March 1995, two months after his separation from service, the Veteran underwent two VA examinations during which he reported a history of “diffuse arthritis” and “arthralgias” in his feet, ankles, knees, elbows, and lower back (he also reported pain in his shoulders). The examiner noted a “history of oligoarthralgias,” the etiology of which “at this moment is unclear;” the examiner noted that additional testing would be ordered, but there is no evidence of record that such testing was ever performed. Furthermore, the Veteran has repeatedly reported pain and swelling in his neck, bilateral shoulders, and bilateral knees while seeking treatment for his gout. Pursuant to the May 2019 Board remand, a November 2019 VA examiner provided an etiological opinion stating that the claimed conditions were at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service, injury, or illness. However, the VA examiner explained that the shoulders, knees, and neck conditions were separate from gout with an independent pathology and are related to age and motor vehicle accident, not his military service. The VA examiner observed that the Veteran had sought treatment for diffused joint pain since service, but found that unfortunately this was not treated as gout until many years later. Furthermore, the VA examiner stated that the separation examination report was silent for musculoskeletal concerns. Here, the Board finds that the November 2019 VA opinion is inadequate as the positive nexus opinion conflicts with the rationale. In addition, the VA examiner failed to acknowledge the Veteran’s Report of Medical History at separation where the Veteran reported painful and swollen joints. Furthermore, the rationale did not adequately explain why the Veteran’s current reports of pain in his neck, bilateral shoulders, and bilateral knees were related to his age and motor vehicle accident rather than his service-connected gout. As such, a new VA opinion is warranted. 3. The claim for a TDIU prior to September 3, 2019, on an extraschedular basis The Board recognizes that prior September 3, 2019, the Veteran did not meet the schedular requirement for TDIU. Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran’s statements as well as the evidence of record raise a question as to whether his claim for TDIU prior to September 3, 2013, should be referred for extraschedular evaluation under 38 C.F.R. § 4.16(b). In Floyd v. Brown, 9 Vet. App. 88 (1996), the United States Court of Appeals for Veterans Claims held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, “the regulation does not preclude the Board from considering whether referral to the appropriate first-line officials is required.” Id. at 95. In light of the foregoing, the Veteran’s claim for TDIU prior to September 3, 2013, is being remanded so that it may be referred to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: 1. Obtain an opinion to determine the nature and etiology of his current headache disorder. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. After reviewing the record, the examiner must respond to the following questions: a. Is the Veteran’s headache disorder distinct from his service-connected sinusitis? b. If it is distinct, is at least as likely as not (50 percent or greater probability) that the headache disorder had its onset during active service or is related to any in-service disease, event, or injury; or is secondary to, or aggravated by (made worse by), the Veteran’s service-connected sinusitis. Why or why not? Please specifically discuss all pertinent service treatment records (to include records of headaches in service), the Veteran’s lay statements regarding his symptomatology, and the September 2018 evaluation provided by Dr. Blevins regarding the Veteran’s claimed headache disorder. 2. Obtain an opinion to determine the etiology of his current musculoskeletal disabilities to include, a neck disability, a bilateral shoulder disability, and a bilateral knee disability, and whether these disabilities are secondary to, or aggravated by (made worse by), his service-connected gout. If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The VA examiner is requested to clarify all diagnosed disabilities of the neck, bilateral shoulders, and bilateral knees. After reviewing the record, the VA examiner must respond to the following questions: a. If the Veteran is determined to have current disabilities of the bilateral shoulders, bilateral knees, and/or neck, is it at least as likely as not that any of these disabilities began in or were otherwise caused by the Veteran’s active military service? Why or why not? b. Is it at least as likely as not that the Veteran’s reported disabilities of the bilateral shoulders, bilateral knees, and neck secondary to, or aggravated by (made worse by), his service-connected gout? Why or why not? If a new VA examination is needed to provide the opinions, one should be scheduled. The VA examiner is asked to address the lay statements of the Veteran concerning his symptomology and onset, relevant service treatment records (including the Report of Medical History at separation), and post-service treatment records indicating complaints of pain and swelling in his joints related to his gout. 3. Following the completion of all the remand instructions above, if the criteria for a schedular TDIU prior to September 3, 2013, are not met, refer the issue of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service pursuant to 38 C.F.R. § 4.16 (b). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.