Citation Nr: 21074854 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-44 710 DATE: December 16, 2021 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable disability rating prior to August 28, 2015, and greater than 30 percent thereafter, for migraine headaches is remanded. Entitlement to an initial compensable rating for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran had in-service duties that involved working in and around the flight line. 2. The record evidence shows that the Veteran's current tinnitus is related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1972 to March 1978. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted, in pertinent part, a claim of service connection for radiculopathy of the left lower extremity, assigning a zero percent rating effective January 31, 2014, and denied a claim for a compensable disability rating for migraine headaches. In a July 2018 rating decision, the RO assigned a higher 30 percent rating effective April 28, 2015, for the Veteran's service-connected migraine headaches. A virtual Board hearing was held in August 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Veteran's hearing testimony, the Board finds that the issues on appeal should be characterized as stated above. The Board notes that, in Rice, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In this case, the record evidence reasonably raises a TDIU claim. This claim is addressed in the remand below. The Board finally notes that, after his August 2021 hearing, the Veteran submitted additional lay statements in support of his appeal along with a waiver of RO jurisdiction over this evidence. Thus, the Board finds that it can consider this evidence without remanding this appeal to the RO in the first instance. 1. Entitlement to service connection for tinnitus The Board finds that the evidence supports granting the Veteran's claim of service connection for tinnitus. The Veteran essentially contends that he incurred his current tinnitus during active service, including while working on the flight line, and experienced continuous post-service disability. The Veteran's available service personnel records show that his in-service duties included maintaining lifesaving and survival equipment for multiple U.S. Air Force squadrons and briefing aircrews on how to use this equipment properly and survive adverse incidents with their aircraft. Although it is not clear from a review of these records where these in-service briefings occurred (i.e., inside an office building or on the flight line around aircraft), the Board finds is reasonable to conclude that the Veteran likely worked in and around the flight line during service. Thus, his lay assertions regarding working in and around the flight line are deemed credible because they are consistent with the facts and circumstances of his active service. While there is some conflicting evidence of record, the Board finds no substantial reason to doubt the Veteran's assertions that his tinnitus began in service and has been present since that time. As such, the appeal is granted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating prior to August 28, 2015, and greater than 30 percent thereafter, for migraine headaches, and to an initial compensable rating for radiculopathy of the left lower extremity is remanded. The Veteran essentially contends that his service-connected migraine headaches and radiculopathy of the left lower extremity are more disabling than currently (or initially) evaluated. The record evidence shows that these disabilities were examined most recently in September 2017, more than 4 years ago. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions and the length of time which has elapsed since his most recent VA examinations in September 2017, the Board finds that, on remand, he should be scheduled for examinations which address these matters. 2. Entitlement to a TDIU is remanded. As noted in the Introduction, the record evidence reasonably raises a TDIU claim. To date, however, the RO has not conducted any development of this claim. The Board also notes that, because adjudication of the other claims being remanded in this decision likely will impact adjudication of the TDIU claim, all of these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board finds that adjudication of the TDIU claim must be deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Conduct any appropriate development on the Veteran's TDIU claim, including sending him a VA Form 21-8940 and asking him to complete it by providing a complete employment history. 3. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected migraine headaches. (Continued on the next page) 4. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected radiculopathy of the left lower extremity. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.