Citation Nr: 21064345 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 10-12 244 DATE: October 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of head injury (previously captioned as tinnitus, to include on an extraschedular basis) is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The Veteran served on active duty from July 1990 to October 1993 and from February 2004 to December 2004, with additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board most recently remanded these claims in February 2021 for additional development. REASONS FOR REMAND Based on a review of the evidence of record, including the Veteran's assertions, the Board has re-captioned the service-connected disability as one for residuals of an in-service head injury. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that, when determining the scope of a claim, the Board must consider the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). By way of history, in the February 2021 remand, the Board stated: With respect to tinnitus, in the October 2018 remand, the Board highlighted previous symptoms that the Veteran associated with his service-connected tinnitus (i.e., dizziness, lightheadedness, imbalance, vision disturbances, and nausea, among others). The Board requested that the Veteran be provided a VA examination, in essence, to ascertain whether the claimed manifestations were aspect of his tinnitus. In August 2020, the Veteran underwent the requested examination. The examiner did not reference or discuss the reported symptoms. This is significant because in Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167; see also Long v. Wilkie, 33 Vet. App. 167 (2020) (en banc). Pursuant to Morgan and Long, the Board finds that it is essential to the rate, on a schedular basis, all of the manifestations of the Veteran's service-connected tinnitus. Based on the above, the Board finds that the March and August 2020 VA examinations are insufficient for adjudication purposes. As such, a remand is required in order to provide the Veteran with additional VA examinations. Following the remand, the VA examiner stated, The common denominator is that the pt's tinnitus started in 1991-1992 while he was active in the service. He stated that the tinnitus started after a head injury. Head injuries can cause dizziness, lightheadedness, imbalance, vision disturbances, and nausea, as well as hearing loss and tinnitus. The TINNITUS did not cause these symptoms, rather, the head injury at least as likely as not has. Tinnitus cannot cause symptoms such as dizziness, lightheadedness, etc. Rather, it is another event that caused the tinnitus and other dizziness, lightheadedness, etc. symptoms. This is significant blurred vision in granting service connection for tinnitus in a July 1994 rating decision, the RO stated, Service connection for tinnitus In December 1991 it was four day history of ringing in the right ear with complaint that the ear was painful when exposed to cold On 92 there was one week history of ringing in the left ear There was report of episodic ringing first noted in October 1991 There was no history of trauma On 13 92 there is history of being knocked unconscious in April 1992 when struck on the left side of the head He reported that he did not receive treatment at that time Reported left sided tinnitus for several months Evaluation in November 1992 noted mild serous otitis media There was no report of constant tinnitus or that tinnitus was the result of acoustic or other trauma On VA examination the veteran reported constant ringing in the left ear following an explosion during basic training in April 1991 Although there are conflicting reports as to the origin and consistency of tinnitus reasonable doubt is resolved in favor of the veteran and compensable evaluation is assigned for tinnitus As such, as discussed above, the Veteran's tinnitus claim must be recharacterized per Clemons as a higher rating for residuals of an in-service head injury and we need to have the RO consider the issue, to include whether service connection or separate ratings are warranted for dizziness, lightheadedness, imbalance, vision disturbances, and nausea, which the VA examiner has opined are related to the in-service head injury, which has also resulted in the Veteran's tinnitus. The issue of entitlement to TDIU is inextricably intertwined with the increased rating claim and, thus, remanding it for contemporaneous consideration is warranted. The matters are REMANDED for the following action: 1. Review the July 1994 rating decision that granted service connection for tinnitus, as well as the March 31, 2021 VA examiner addendum. 2. Given that the Veteran's tinnitus has been associated with the Veteran's acknowledged in-service head injury, determine whether separate ratings are warranted for the Veteran's dizziness, lightheadedness, imbalance, vision disturbances, and nausea, and any other residuals associated with in-service head injury. 3. If a VA examination is required, one must be provided to the Veteran to ascertain the nature and current severity of his service-connected head injury residuals. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups. The examiner must describe the nature, extent and severity of each of the manifestations of the Veteran's in-service head injury. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.