Citation Nr: 21072868 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-04 679A DATE: December 6, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for service-connected tinnitus is denied. REMANDED Entitlement to an increased evaluation in excess of 10 percent for right hip degenerative arthritis with limited extension is remanded. Entitlement to a compensable evaluation for right hip degenerative arthritis with limited flexion is remanded. Entitlement to a compensable evaluation for right hip degenerative arthritis with limited abduction, adduction, and rotation is remanded. Entitlement to an increased evaluation for right knee tendonitis in excess of 10 percent prior to October 8, 2015, and in excess of 30 percent thereafter, excluding from October 27, 2017 to December 1, 2017 is remanded. FINDING OF FACT The Veteran's tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating authorized under the applicable criteria. CONCLUSION OF LAW The criteria for entitlement to an increased evaluation in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2005 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision which granted service connection for right knee ligament reconstruction, assigning a noncompensable evaluation. The Veteran filed a timely NOD in December 2009. A June 2013 rating decision decreased the Veteran's evaluation for right hip strain from 10 percent disabling to 0 percent. The Veteran filed a timely NOD in January 2014. An October 2016 rating decision granted service connection for tinnitus, assigning a 10 percent evaluation. The Veteran filed a timely NOD in November 2016. A Statement of the Case (SOC) was issued in December 2017 for the issues on appeal. The Veteran filed a VA Form 9 in January 2018. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in May 2020; however, a complete transcript of the proceeding was unable to be produced due to the audio malfunctions heard throughout the Veteran's testimony in the Digital Audio Recording System (DARS). The Veteran requested another hearing but withdrew her request in April 2021. 1. Entitlement to an increased evaluation in excess of 10 percent for service-connected tinnitus The Veteran contends that an increased evaluation for tinnitus. The criteria of Diagnostic Code 6260 were revised, effective June 13, 2003, in part to clarify existing VA practice that only a single 10 percent rating is assigned for tinnitus, regardless of whether tinnitus is found as being in one ear or in each ear or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. In Smith v. Nicholson, 451 F.3d 1344, 1350-51 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Court) affirmed VA's interpretation of Diagnostic Code 6260 allowing for the assignment of only a single 10 percent rating for tinnitus, whether or not the tinnitus is determined to exist unilaterally or bilaterally. In consideration of the clear language of Diagnostic Code 6260 and the direction of the Court in Smith, the Board concludes that the 10 percent schedular rating for the Veteran's tinnitus is the maximum rating assignable under Diagnostic Code 6260. Further, as the Veteran has not asserted any extraschedular manifestations of her service-connected tinnitus, referral for consideration for an extraschedular evaluation is not warranted. Therefore, entitlement to an increased evaluation for tinnitus in excess of 10 percent is not warranted. REASONS FOR REMAND 1. Entitlement to an increased evaluation in excess of 10 percent for right hip degenerative arthritis with limited extension is remanded. 2. Entitlement to a compensable evaluation for right hip degenerative arthritis with limited flexion is remanded. 3. Entitlement to a compensable evaluation for right hip degenerative arthritis with limited abduction, adduction, and rotation is remanded. The Veteran contends that her right hip degenerative arthritis warrants an increased evaluation. While the record contains VA examinations regarding the Veteran's service-connected right hip degenerative arthritis, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. Moreover, the examination failed to note the degree at which pain occurred, despite the examiner reporting that the Veteran experienced pain on extension and abduction. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, on remand, the Board finds the Veteran should be afforded a new VA examination that complies with DeLuca, Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. Entitlement to an increased evaluation for right knee tendonitis in excess of 10 percent prior to October 8, 2015, and in excess of 30 percent thereafter, excluding from October 27, 2017 to December 1, 2017 is remanded. The Veteran contends that her right knee tendonitis warrants an increased evaluation. While the record contains an August 2016 VA examination regarding the Veteran's right knee tendonitis, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). When asked if pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, the August 2016 examiner indicated that an opinion could not be provided without resorting to speculation because "there is no additional data to add." The sole fact that a veteran is not being examined during a flare-up has been rejected by the Court as an adequate basis for failing to provide an opinion or estimation as to the degree of functional loss or impairment during a flare. Id. at 33. Thus, a new examination is warranted to assess the impact of flare-ups on the right knee range of motion. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected right hip strain. The Veteran's claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees). (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the right hip cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] 3. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected right knee tendonitis. The Veteran's claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees). (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the right knee cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate 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.