Citation Nr: 21064105 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-55 849 DATE: October 19, 2021 ORDER A rating in excess of 10 percent for tinnitus is denied. REMANDED A rating in excess of 10 percent for TBI residuals is remanded. A rating in excess of 10 percent for a low back disability is remanded. A compensable rating for hypertension is remanded. A compensable rating for status post septoplasty with allergic rhinitis is remanded. A rating in excess of 10 percent for sinusitis prior to June 6, 2016, is remanded. A compensable rating for sinusitis since June 6, 2016, is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 23, 2017, is remanded. FINDING OF FACT The 10 percent disability rating currently in effect for the period on appeal is the maximum schedular rating for tinnitus. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from April 1998 to October 2014. The Veteran previously requested to appear at a Board hearing, but submitted timely correspondence in August 2021 to withdraw this request. The request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(e). The Veteran's has a combined 100 percent rating for her service-connected disabilities since May 23, 2017. However, the issue of TDIU for the period prior to May 23, 2017, remains in appellate status because there were other increased rating claims already on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability ratingwhether expressly raised by a Veteran or reasonably raised by the recordis not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. In conjunction with the Court's decision in Harper v. Wilkie, 30 Vet. App. 356 (2018), when the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a notice of disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. Furthermore, if the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the outstanding period remains in appellate status. Id. 1. A rating in excess of 10 percent for tinnitus The Veteran contends generally that the service-connected tinnitus warrants a higher rating. This disability is currently rated at the maximum award of 10 percent under 38 C.F.R. § 4.87, Diagnostic Code 6260, and became effective on October 29, 2014. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. This Diagnostic Code was revised effective June 13, 2003. The revisions were intended to codify VA's longstanding practice of assigning a single 10 percent evaluation for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. See Schedule for Rating Disabilities: Evaluation of Tinnitus, 68 Fed. Reg. 25,822 (May 14, 2003). This Diagnostic Code has not changed and continues to stipulate that only a single evaluation for recurrent tinnitus will be assigned-whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA's longstanding interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral). Accordingly, the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Neither the Veteran nor her representative has raised any other issues, 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). REASONS FOR REMAND 1. A rating in excess of 10 percent for TBI residuals is remanded. 2. A rating in excess of 10 percent for a low back disability is remanded. 3. A compensable rating for hypertension is remanded. 4. A compensable rating for status post septoplasty with allergic rhinitis is remanded. 5. A rating in excess of 10 percent for sinusitis prior to June 6, 2016, is remanded. 6. A compensable rating for sinusitis since June 6, 2016, is remanded. 7. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 23, 2017, is remanded. In an August 2021 Appellate Brief, the Veteran's representative asserted that the TBI residuals, low back disability, hypertension, allergic rhinitis, and sinusitis disabilities have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of TBI residuals, low back disability, hypertension, allergic rhinitis, and sinusitis. Evidence indicates that there may be outstanding relevant VA treatment records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2017 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected TBI residuals. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected allergic rhinitis and sinusitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Moreover, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.