Citation Nr: 21022985 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-62 465 DATE: April 19, 2021 REMANDED Entitlement to an initial increased rating in excess of 10 percent for service-connected tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1963 to March 1976. This matter originally came before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board for further development in December 2019. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). 1. Entitlement to an initial increased rating in excess of 10 percent for service-connected tinnitus is remanded. The Veteran believes that an increased rating for service-connected tinnitus is warranted. See April 2021 Appellate Brief. A December 2019 Board decision remanded the issue for an examination. Among other things, the examiner was instructed to obtain the Veteran’s complete educational, vocational, and employment history. The examiner was also instructed to identify all limitations or functional impairments caused solely by the Veteran’s tinnitus. See December 2019 BVA Decision. The examination took place in October 2020 and an addendum opinion was provided in November 2020. See November 2020 C&P Exam. The Board finds the examination and addendum opinion inadequate because they did not substantially comply with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, they did not obtain the Veteran’s complete educational, vocational, and employment history. Additionally, the examiner did not identify all limitations or functional impairments caused solely by the Veteran’s tinnitus. Instead, the examiner merely reiterated the Veteran’s reports of problems the Veteran believes are related to his tinnitus. For these reasons, a remand is needed for a new examination. 2. Entitlement to a TDIU is remanded. The Board finds that the TDIU issue is inextricably intertwined with the tinnitus issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As favorable action on the tinnitus issue could potentially result in the award of a TDIU, the TDIU issue is deferred until the requested development has been completed. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to December 2020. 2. Provide the Veteran with a VA Form 21-8940 with instructions that the information should be provided in order to assist with the adjudication of the TDIU issue. If the Veteran provides the VA Form 21-8940, the AOJ should complete any additional development prompted by the information on the completed form. 3. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities and a statement that the copy is an exact duplicate of the return filed with the IRS. In doing so, provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above 4. Schedule one or more appropriate VA examinations to determine the current nature and severity of the Veteran’s tinnitus disability. The need for an in-person examination of the Veteran is left to the discretion of the examiner. The examiner should also consider the impact that the Veteran’s tinnitus disability may have on the Veteran’s pain, headaches, neckaches, concentration, relationships, sleep, shaking, and mental/emotional state. The claims file, including a copy of this remand, should be made available to and should be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s tinnitus disability. This should also include the impact that the Veteran’s tinnitus disability may have on the Veteran’s pain, headaches, neckaches, concentration, relationships, sleep, shaking, and mental/emotional state. The examiner is also asked to opine on the impact that both the Veteran’s service-connected tinnitus and service-connected bilateral hearing loss disabilities have on the Veteran’s daily life. The examiner should also attempt to elicit from the Veteran his complete educational, vocational, and history. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) Identify all disabilities related to the Veteran’s tinnitus, existing at any point during the pendency of the appeal (i.e. since November 2016), even if they are currently asymptomatic or have resolved during the pendency of the appeal.  (B) The Veteran is also claiming that his service-connected tinnitus disability is affecting his pain, headaches, neckaches, concentration, relationships, sleep, shaking, and mental/emotional state. Identify all disabilities (psychological or physical) related to these complaints during the appeal period. (C) For each disability identified, is it at least as likely as not (i.e. a 50 percent probability or greater) that the disability is related to or aggravated by the Veteran’s service-connected tinnitus disability? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record:  (1) A record from 2021 showing ongoing treatment for tinnitus. See January 2021 VA Memo. (2) Medical records from 2020 showing that the Veteran’s tinnitus sounded like grinding, a chainsaw, and a siren. The Veteran reported that the tinnitus affected his ability to concentrate, kept him from sleeping soundly/caused sleep problems, and made him nervous. The Veteran also reported that his bilateral hearing loss caused difficulty hearing speech, prevented him from understanding radio communications on the job, and caused marital problems because his spouse and he argued daily due to the fact that he had difficulty understanding her speech. See November 2020 C&P Exam. (3) Medical records from 2019 showing that the tinnitus was always there. See January 2020 CAPRI. (4) Medical records from 2017 showing that the Veteran’s tinnitus sounded like chainsaws and screaming. It was constant and worse at night. It was also worse with hearing aids. The Veteran used a white noise machine for sleep. The Veteran reported that the tinnitus interfered with sleep. The Veteran was counseled on tinnitus management. See January 2020 CAPRI. (5) The Veteran’s report that tinnitus caused him to live with screaming noises all day every day. It never stopped but continued to get worse. He had trouble hearing radios, missed information, had trouble talking to people, and had trouble hearing sounds that had been very important to his job. He felt like he was in a room with about six chainsaws running wide open throttle, with four babies screaming at the top of their lungs, and with a few police whistles at full volume. It was really hard to sleep at night because of this. He suffered headaches, neckaches, embarrassment, scorn, and nervous problems. Because of tinnitus, his hands shook. He had problems writing because he had to hold his writing hand with the other hand to help control the shaking. See May 2017 NOD. (6) A medical record from 2017 showing the Veteran’s report that his tinnitus caused pain, headaches, the inability to concentrate, and caused the Veteran to think others were talking when they were not. See February 2017 C&P Exam. (7) Any and all other relevant lay and medical evidence. A complete and clear rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community or is due to the limits of the examiner’s medical knowledge. 4. Readjudicate the issues on appeal. The AOJ should consider separate ratings, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.