Citation Nr: 21077379 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-30 049 DATE: December 29, 2021 ORDER Entitlement to an initial disability rating for tinnitus in excess of 10 percent is denied. REMANDED Entitlement to an initial disability rating for right total knee arthroplasty status post revision (previously right knee meniscal tear) in excess of 20 percent from September 11, 2012 to June 20, 2014 and 30 percent from January 1, 2016 is remanded. Entitlement to an initial compensable disability rating for right knee residual surgical scars is remanded. Entitlement to service connection for a back disability, to include lumbar degenerative disease, is remanded. Entitlement to service connection for a bilateral shoulder disability, to include osteoarthritis and tendonitis, is remanded. Entitlement to service connection for a right hip disability, to include trochanteric pain syndrome and bursitis, is remanded. Entitlement to service connection for bilateral sensorineural hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT The Veteran is already in receipt of the highest available schedular disability rating for tinnitus. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating for tinnitus in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDING AND CONCLUSION Increased Rating for Tinnitus The Veteran contends that he is entitled to a rating in excess of 10 percent for tinnitus because the ringing is constant. Under 38 C.F.R. § 4.87, Diagnostic Code 6260, a 10 percent rating is warranted for recurrent tinnitus. This is the maximum schedular rating assignable for tinnitus. Only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. Id. at Note (2); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). In the present case, the Veteran is already in receipt of a 10 percent rating, the maximum schedular rating assignable for this condition. Accordingly, an increased rating not warranted. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Having reviewed the record, the Board finds remand is warranted with respect to the issues of: With respect to the issue for an increased rating for right knee disability, the Veteran has reported worsening symptoms. During the April 2021 hearing, he reported instability and giving out of the knee, resulting in a fall and broken arm. In light of this, the Board finds that remand is warranted for an examination to assess the current severity of his right knee disability. With respect to the issue for an increased rating for the right knee scar, the Board finds that it is inextricably intertwined with the right knee disability and should be remanded as well. Additionally, the Veteran has reported worsening pain. Accordingly, during the right knee examination, the examiner should also assess the severity of the right knee scar. With respect to the issues for service connection for a back disability, bilateral shoulder disabilities, right hip disabilities, and bilateral sensorineural hearing loss, remand is warranted for additional development and examination. First, the Veteran indicated during the April 2021 hearing that there may be relevant VA treatment records, to include updated CT scans of the back. Accordingly, remand is warranted to obtain any outstanding VA treatment records. Additionally, remand is warranted for an examination to clarify the etiology of these disabilities. The record does not contain an opinion on whether the Veteran's lumbar degenerative disease, bilateral shoulder osteoarthritis, or sensorineural hearing loss, which are considered chronic diseases under 38 C.F.R. §§ 3.303 and 3.309, at least as likely as not began during active service, manifested within 1-year after discharge from service, or was noted during service with continuity of the same symptomatology since service. Additionally, the Veteran has asserted that his right hip is proximately due to or aggravated by his service-connected right knee disability and that his bilateral shoulder disability is related to carrying heavy medical equipment during service. The record does not contain these opinions and, as such, remand is warranted. Any outstanding VA treatment records from February 2020 to present should be obtained and associated with the claims file. Finally, evidence of unemployability was submitted during the course of an appeal from an assigned disability rating by way of a December 2017 private vocational opinion. Accordingly, the issue of entitlement to TDIU is properly before the Board because it is part and parcel of the claim for an increased rating for the right knee total arthroplasty. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the increased rating claim for the right knee is being remanded, the outcome of which could affect whether the Veteran meets the criteria for TDIU benefits, the Board finds that the claim for TDIU is inextricably intertwined with the increased rating claim and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from February 2020 to present, to include any new CT scans of the back. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected (i) right total knee arthroplasty status post revision and (ii) right knee residual surgical scars. 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 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 at all 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). 3. Schedule the Veteran for a VA examination by an orthopedist (M.D.) and audiologist to assess the etiology of his (i) lumbar degenerative disease, (ii) bilateral shoulder disability, (iii) right hip disability and (iv) sensorineural hearing loss. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) With respect to lumbar degenerative disease, bilateral shoulder disability, and right hip disability, is the disability at least as likely as not related to active service, to include duties that involved carrying heavy medical equipment? (b) With respect to lumbar degenerative disease and right hip disability is the disability at least as likely as not (i) proximately due to or (ii) aggravated, i.e., worsened beyond its natural progression, by right knee total arthroplasty status post revision? (c) With respect to lumbar degenerative disease, shoulder osteoarthritis, and sensorineural hearing loss, is it at least as likely as not that the disability (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.