Citation Nr: 21076986 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-34 379 DATE: December 28, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to an increased evaluation in excess of 30 percent for exercise-induced asthma is remanded. Entitlement to an increased evaluation in excess of 30 percent for migraine headaches is remanded. Entitlement to an increased evaluation in excess of 10 percent for lumbago with L3-L4 disc herniation is remanded. Entitlement to an increased evaluation in excess of 10 percent for cervical spine, cervicalgia status post fusion C5-C6 with disc bulging and stenosis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT The Veteran's service-connected tinnitus is assigned a 10 percent rating which is the maximum rating authorized under Diagnostic Code 6260. The evidence in this case does not show such an exceptional disability picture that the assigned schedular evaluation for tinnitus is inadequate. CONCLUSIONS OF LAW The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active-duty service with the Army from March 1981 to February 1982; June 2002; February 2009 to October 2009; and from March 2010 to June 2010 to include service in the National Guard. This matter is on appeal from an August 2013 rating decision. The Board initially notes that following the April 21, 2017 Statement of the Case (SOC) for the above issues, the Veteran's form 9 was submitted in June 26, 2017 which would not have been filed timely. However, the RO nevertheless issued a certification of appeal, VA Form 8, shortly after receipt of the Veteran's Form 9. Accordingly, the Board has waived the timeliness requirement of the substantive appeal, VA Form 9, in this case and assumes jurisdiction over the Veteran's claims. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (the failure to file a timely substantive appeal is not jurisdictional and may be waived by the Board). The Veteran was afforded a September 2021 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. During the pendency of the appeal, a July 2017 rating decision increased the evaluation of the Veteran's asthma to 30 percent. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran's appealed disability remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). A claim for a TDIU is part and parcel of an increased rating claim where the Veteran asserts, or the record reasonably raises that his service-connected disabilities prevent him from working or maintaining substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The Veteran has testified at the July 2021 hearing that he has been receiving Social Security disability benefits effective from December 2013 due to his service-connected disabilities. As such, the Board takes jurisdiction of this claim as part and parcel of the present appeal. Increased Rating Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Board must consider entitlement to "staged" ratings to compensate for times since filing a claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where, as here, entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged" rating (i.e., the assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Tinnitus The Veteran is service-connected for tinnitus evaluated at 10 percent under Diagnostic Code 6260. Ten percent is the maximum schedular rating for tinnitus, regardless of whether the tinnitus affects one or both ears. 38 C.F.R. § 4.87, Diagnostic Code 6260. Effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for "recurrent" tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2); 68 Fed. Reg. 25,822 (June 2003); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Veteran currently is receiving the maximum schedular rating for tinnitus. Thus, a higher schedular rating is not warranted. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether a veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected tinnitus is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, ringing in the ears, with the established criteria shows that the rating criteria more than reasonably describe the Veteran's disability level and symptomatology. The criteria specifically provide for evaluation of the disability based upon recurrent tinnitus, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. The Veteran has stated or testified to symptoms of tinnitus to include decreased concentration and attention, needing to turn up the television volume, and having to ask others to repeat themselves. While Veteran is competent to describe his symptoms and their effects on employment or daily activities and the Veteran's statements have been consistent with the medical evidence of record, the reported symptoms associated with the Veteran's tinnitus are contemplated by Diagnostic Code 6260 as such are results of the basic symptoms of tinnitus. The Veteran has not identified any unique or unusual symptoms of his tinnitus. Moreover, even if it were concluded that the Veteran's tinnitus caused symptomatology that was not contemplated by the schedular rating criteria, there is no evidence suggesting that the Veteran's tinnitus has developed any unusual or exceptional symptoms that are consistent with an extraschedular rating. For example, the Veteran has not been hospitalized to treat his tinnitus, and it has not been alleged to have caused marked interference with employment. A comparison between the level of severity and symptomatology of the Veteran's disability, ringing in the ears, with the established criteria shows that the rating criteria more than reasonably describe the Veteran's disability level and symptomatology. The criteria specifically provide for evaluation of the disability based upon recurrent tinnitus, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. The Board, therefore, has determined that an extra-schedular rating pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted. The weight of evidence reflects that there is not such an exceptional disability picture that the available schedular evaluation for the service-connected tinnitus is inadequate. For the reasons and bases set forth above, the Board concludes that the most probative evidence weighs against finding that a rating in excess of 10 percent for tinnitus is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. REASONS FOR REMAND The Board finds that remand is warranted for additional development. The Board notes that the most recent VA examination to evaluate the Veteran's asthma, headache, back and cervical disabilities was held in April 2013. At the Veteran's September 2021 hearing, the Veteran testified to the symptoms of his claimed disabilities. The Veteran described his headaches as severe in 2015 and describing half of them as "bad ones" and may require him to rest in a dark room until it passes. Regarding asthma, the Veteran reported that he requires taking a steroid for treatment as well as use an inhaler for emergency or nebulizer twice a week. It is unclear from the record whether the described steroid is a systemic corticosteroid for treatment and how frequent the Veteran took this steroid. Regarding the Veteran's cervical and back disability, review of the medical treatment record shows the Veteran reported symptoms of radiation into the legs or reduced sensation in the upper extremities to include the hands and fingers. At the Veteran's September 2021 hearing, the Veteran testified that his back pain would radiate to his right leg and his neck pain would radiate to the shoulders. The Board notes that the Veteran's VA medical center (VAMC) treatment records date only up to May 2017. In October 2014 the Veteran reported seeing an outside neurologist to treat his migraines that by December 2015 he reported no longer seeing because of a "loss of benefits." It is unclear whether the private treatment records have been associated with the records. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts or describes symptoms that indicate the disability in question has undergone an increase in severity since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's testimony and statements regarding his appealed disabilities, the Board finds that a remand is warranted to ascertain the current severity of the Veteran's appealed disabilities and to obtain outstanding records to associate with the claims record. As the outcome of the claim could have a significant impact on the Veteran's claim of entitlement to a TDIU, the issue of entitlement to a TDIU is inextricably intertwined with the remanded claims and is also remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed asthma, headaches, back, and cervical disability. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. (a.) If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for appropriate VA examination to assess the current severities of the Veteran's service-connected asthma, headaches, back disability and cervical disability, to include any associated nerve damage relating to the back and cervical disability. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Did the Veteran have intermittent use of systemic steroids (defined as at least three courses per year) or daily use of systemic steroids or immunosuppressive medications to treat his asthma during the appeal period? (b.) If the examiner finds that the Veteran's asthma required intermittent or daily use of systemic high dose corticosteroids or immunosuppressive medications as any point during the appeal period, the examiner should identify the duration of this treatment, to include the start and end dates of the specific periods of treatment for such. (c.) Record in detail the symptoms and manifestations of the Veteran's back and cervical disability, including any affecting the nerves, and how they affect his ability to function. (d.) To the extent possible, distinguish the symptoms due to nerve damage, and address each nerve separately. If this is not possible, identify all symptoms that overlap. (e.) Evaluate the severity of any nerve damage. With regard to each affected nerve, characterize the nerve damage as mild, moderate or severe. (f.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected parts. (g.) The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (h.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (i.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.