Citation Nr: 21068076 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 20-16 170 DATE: November 9, 2021 ORDER Entitlement to a rating greater than 10 percent for tinnitus is denied. REMANDED Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating greater than 10 percent for a lumbar spine disorder is remanded. Entitlement to a rating greater than 10 percent for a left palm scar is remanded. Entitlement to a compensable rating for hypertension is remanded. Entitlement to a compensable rating for residuals of right wrist ulnar styloid unfused apophysis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 to May 2004, and from September 2005 to February 2012. In November 2018, VA continued a 70 percent rating for PTSD; continued 10 percent ratings for a lumbar spine disorder, left palm scar, and tinnitus; continued noncompensable ratings for hypertension and a right wrist disorder; and denied entitlement to TDIU. The Veteran disagreed with the decision and perfected this appeal. The appeal period stems from the Intent to File received in October 2017. In February 2021, the Board denied the claims on appeal because the Veteran failed to report for VA examinations without good cause. 38 C.F.R. § 3.655(b). In June 2021, the Board vacated this decision on due process grounds. 38 C.F.R. § 20.1000(a). In July 2021, the Board granted a 90-day extension to submit additional evidence and/or argument. In September 2021, the attorney requested that the Board move forward with a decision. Entitlement to a rating greater than 10 percent for tinnitus The Veteran essentially contends that the rating assigned for tinnitus does not adequately reflect the severity of his disability. In an April 2019 affidavit, he reported that tinnitus makes communication with others difficult and because of the ringing in his ears, he often has to ask people to repeat themselves. He further stated that tinnitus contributes to his irritability and short temper. In a December 2020 affidavit, he indicated that while working in home health care, his tinnitus did not affect his ability to care for patients but if he was a few rooms down, then it could cause some hearing problems. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. A 10 percent evaluation is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Only a single evaluation may be assigned, whether the sound is perceived in one ear, both ears, or in the head. Id. at Note (2). The Board acknowledges that the Veteran failed to report for a previous examination to assess the severity of his tinnitus and that he has now indicated a willingness to attend VA examinations. On review, the Veteran is currently receiving the maximum schedular rating available for tinnitus and additional examination is not warranted. There is simply no basis for a higher rating under the assigned diagnostic code. The schedular rating for tinnitus contemplates the Veteran's reports of ringing in his ears and its functional impairment, and neither the Veteran nor his attorney contend otherwise. Referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b)(1). To the extent the Veteran reports that tinnitus impacts his ability to work, this will be considered by the agency of original jurisdiction (AOJ) as part of the readjudication of entitlement to TDIU. REASONS FOR REMAND Entitlement to increased ratings for PTSD, lumbar spine disorder, left palm scar, hypertension, and right wrist disorder, to include TDIU In February 2021, the attorney argued that the evidence of record was sufficient to grant entitlement to TDIU. He noted that the Veteran met the schedular criteria for TDIU throughout the appeal period and that he has not had earnings above the poverty threshold since 2013. He further argued that the lay evidence showed functional limitations related to the Veteran's service-connected disabilities that precluded substantially gainful employment. At a minimum, the attorney requested that the Board remand the appeal to obtain updated VA examinations and treatment records. The attorney's arguments concerning entitlement to TDIU are acknowledged, but on review, the record contains little evidence pertaining to the period on appeal and additional development is warranted. See 38 C.F.R. § 3.159(c). The claims folder contains VA treatment records dated through December 2018. Updated VA records should be obtained. The Veteran most recently underwent a VA examination to assess the severity of his PTSD in April 2014. The remaining conditions were last examined in 2011. Given the Veteran's contentions of symptom worsening, additional examinations are needed to determine the current severity of his disabilities. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997). In this regard, the Veteran has provided good cause for missing his prior examinations and has indicated a willingness to attend. See February 22, 2021 Third-Party Correspondence (containing December 12, 2020 Veteran's Declaration). In his September 2018 VA Form 21-8940, the Veteran reported that he last worked full-time in March 2016. VA records dated in November 2017, however, document the Veteran's report that his job was preventing him from getting his labs done. In a December 2020 affidavit, the Veteran reported that he has only had one job since 2018 and it only lasted 2 months. The Veteran should be contacted and asked to provide updated employment information. Further, there is no indication that VA attempted to get information from prior employers, and this should be accomplished on remand. Finally, the Veteran should be asked if he has applied for or been granted disability benefits from the Social Security Administration (SSA). If so, these records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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. The examiner is asked to comment on the functional impact of the Veteran's PTSD on his ability to obtain and maintain substantially gainful employment. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disorder. 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 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 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). The examiner is asked to comment on the functional impact of the Veteran's lumbar spine disorder on his ability to obtain and maintain substantially gainful employment. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left palm scar. 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. The examiner is asked to comment on the functional impact of the left palm scar on his ability to obtain and maintain substantially gainful employment. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his 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. The examiner is asked to comment on the functional impact of hypertension on his ability to obtain and maintain substantially gainful employment. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist disorder (ulnar styloid unfused apophysis). 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. The examiner must also 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 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). The examiner is asked to comment on the functional impact of the right wrist disorder on the Veteran's ability to obtain and maintain substantially gainful employment. 7. Ask the Veteran to provide updated employment information to include the names and addresses of any employers since 2016. Thereafter, the AOJ should contact the Veteran's former employers (to include as identified on the September 2018 VA Form 21-8940) and ask them to complete a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits. 8. Contact the Veteran and ask him if he applied for or is in receipt of disability benefits from the SSA. If so, request a copy of any decision to grant or deny SSA benefits and the medical records upon which that decision was based. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.