Citation Nr: 21075905 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-31 525 DATE: December 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for a low back disorder is remanded. Service connection for a left hip disorder is remanded. Service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for status-post fusion of the thumb at the MP joint (right thumb disability) is remanded. Entitlement to a compensable rating for scars, right thumb, associated with the service-connected right thumb disability is remanded. FINDING OF FACT 1. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum schedular rating authorized under VA regulatory provisions. CONCLUSION OF LAW There is no legal basis for the assignment of a disability rating higher than 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2008 to March 2009, with additional service in the Army National Guard of Ohio. This appeal arises from January 2017 and July 2017 rating decisions. The Veteran testified at a Board virtual hearing in April 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. Increased Rating 1. Entitlement to a rating in excess of 10 percent for tinnitus In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran contends his tinnitus warrants a rating in excess of 10 percent. Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides a 10 percent disability rating for recurrent tinnitus. Note (2) following Diagnostic Code 6260 further explains that the Board must assign only a single evaluation for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The symptomology and functional effects of the Veteran's tinnitus are fully contemplated by the schedular rating criteria. As a 10 percent rating has already been assigned and this is the maximum schedular rating available, the claim is denied. REASONS FOR REMAND 2. Service connection for low back disorder 3. Service connection for left hip disorder The Veteran contends his low back disorder is related to service. He attributes it to carrying heavy equipment and back strain sustained from his duties as a motor transportation operator. He also asserts continuity of low back pain since service. The Veteran's lumbar spine disabilities include lumbar spine degenerative disc disease and lumbar spine spondylosis, slight scoliosis of the lumbar spine, and facet arthritis of the lumbar region. See VA treatment records; November 2018 private Disability Benefits Questionnaire; December 2021 private treatment record. A review of his service treatment records shows indications of back problems during service. A September 2008 record shows he reported mild pain in the lower back. Also, a September 2010 record notes that he had an open case of back sprain, with no reported limitations. Given the Veteran's contentions and indications of back problems in-service and soon after service, the Board finds that a VA examination to obtain a medical nexus opinion is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, on remand, the AOJ should confirm if all National Guard service treatment and personnel records have been received, as this is not entirely clear. In addition, the Veteran testified that he developed left hip pain in approximately 2017, as secondary to his low back disability. As such, the Board will defer the adjudication of this matter pending development of the underlying low back claim. 4. Service connection for bilateral hearing loss The Veteran testified that he suffered military noise exposure from very loud trucks, as well as gunfire and generators. See April 2021 Board hearing transcript. The Veteran's worked as a motor transportation operator during service and his lay statements are not contradicted by any evidence of record. The Veteran's lay statements are competent and credible. 38 U.S.C. § 1154 (a). On VA audiological examination in June 2017, the examiner diagnosed normal hearing bilaterally and declined to provide an etiology opinion. The Board acknowledges that the Veteran's audiometric testing did not meet the requirements for hearing loss disability as recognized by VA. 38 C.F.R. § 3.385. However, more recently, the Veteran submitted a July 2020 private audiological evaluation that appears to indicate worsened bilateral hearing, such that he may now meet VA standards for bilateral hearing loss. As such, a VA examination and medical nexus opinion on the claimed bilateral hearing loss should be provided, with consideration of his lay statements of in-service noise exposure. 5. Entitlement to a rating in excess of 10 percent for a right thumb disability 6. Entitlement to a compensable rating for a right thumb scar The Veteran's last VA examination of his right thumb and associated scar was in March 2017. At his Board hearing, the Veteran indicated these disabilities have worsened, such that the experiences symptoms of constant throbbing pain of the thumb, loss of dexterity and loss of use, and avoidance of writing; and a scar that is sometimes itchy, dry and painful. To accurately assess the current severity of the Veteran's right thumb disability and scar, a current VA examination is needed. 38 C.F.R. § 3.327. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service treatment and personnel records, to include any outstanding documents pertaining to his service in the Ohio Army National Guard and/or Army Reserves. Document all requests for information and responses in the claims file. 2. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his low back disability. On review of the record, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disability was incurred in, caused by, or otherwise related to his active service. Rationale must be provided for the opinion proffered. In providing the requested rationale, the examiner should consider the Veteran's contention of developing a low back disorder from carrying heavy equipment and sustaining back strain from his duties as a motor transportation operator. 3. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed bilateral hearing loss. If hearing loss as recognized by VA is diagnosed, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss is caused by or otherwise etiologically related to his active service, to include in-service noise exposure. Rationale must be provided for the opinion proffered. In providing the requested rationale, the examiner should accept that the Veteran was exposed to military noise exposure as a motor transportation operator and address the Veteran's statements on the history of his bilateral hearing loss during and following service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee thumb disability and associated scar. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluation under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairment and discuss the effect on any occupational functioning and activities of daily living. Rationale must be provided for any opinion proffered. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.